[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Proposed Rules]
[Pages 63120-63139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25362]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 2

RIN 2009-AN72


Release of Information From Department of Veterans Affairs 
Records

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing the submission and processing of requests for 
information under the Freedom of Information Act (FOIA) in order to 
implement provisions of the E-FOIA Act and the Openness in Government 
Act, and to reorganize and clarify existing regulations. The proposed 
regulations would establish the procedures and rules necessary for VA 
to process requests for information under the FOIA, including matters 
such as how to file a request or appeal, how requests for business 
information are handled, and how issues regarding fees are resolved. 
The intended effect of these regulations is to implement legislative 
changes made to the FOIA, as noted above, and to provide the public 
clear instructions and useful information regarding the filing and 
processing of FOIA requests.

DATES: Comments must be received on or before December 13, 2010.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov/; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to 
(202) 273-9026. Comments should indicate that they are submitted in 
response to ``RIN 2900-AN72, Release of Information from Department of 
Veterans Affairs Records.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
http://www.Regulations.gov/.

FOR FURTHER INFORMATION CONTACT: Catherine Nachmann, Staff Attorney, 
Office of the General Counsel (024), Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7684. (This is 
not a toll free number.)

SUPPLEMENTARY INFORMATION: The FOIA, codified at 5 U.S.C. 552, requires 
an agency to publish public guidance regarding its implementation of 
the statute, such as rules of procedure and substantive rules of 
general applicability. The Privacy Act of 1974, as amended, codified at 
5 U.S.C. 552a, requires an agency to publish its rules and procedures 
implementing that statute. Section 501(a) of title 38, U.S.C., 
authorizes the Secretary of Veterans Affairs to prescribe rules and 
regulations to carry out the laws administered by VA, including when 
information may be released from claimant records under 38 U.S.C. 5701, 
what activities fall within 38 U.S.C. 5705 regarding confidentiality of 
medical quality assurance records, whether and to whom information 
pertaining to those activities may be released, and when information 
may be released from records covered by 38 U.S.C. 7332 regarding the 
identity, diagnosis, or treatment of drug abuse, alcoholism or alcohol 
abuse, infection with the human immunodeficiency virus, and sickle cell 
anemia.
    We propose to amend VA's regulations pertaining to release of 
information under 5 U.S.C. 552. VA's current FOIA regulations are 
codified at 38 CFR 1.550 through 1.557, including reserved Sec. Sec.  
1.558 and 1.559. This proposed rule would implement the FOIA in 
Sec. Sec.  1.550 through 1.562. The proposed rule would in large part 
cover the same issues as are covered in VA's current regulations, such 
as how to submit a request for records, how VA addresses a request for 
records, and fees for addressing record requests under the FOIA. We 
propose to update these regulations to accommodate current means of 
communication with VA, streamline the existing procedures based on our 
experience administering the FOIA, incorporate changes in the 
procedural requirements of the FOIA since promulgation of current 
regulations, make VA's procedures easier for the public to understand, 
and generally reorganize and renumber the applicable provisions.
    In addition, we propose to add new provisions to explicitly 
implement the E-FOIA Act, Public Law 104-231, and the Openness in 
Government Act, Public Law 110-175. For additional resources on any of 
the procedural requirements of the FOIA, E-FOIA Act, or Openness in 
Government Act in particular, see the detailed information available at 
the U.S. Department of Justice (DOJ) website. For example, a copy of 
the FOIA can be located at http://www.justice.gov/oip/amended-foia-redlined.pdf. The current edition of the VA FOIA Reference Guide can be 
located at http://www.foia.va.gov/docs/RequesterHandbook.pdf, and 
specific information about implementing the FOIA and its amendments can 
be found in guidance issued by DOJ through its FOIA Updates and FOIA 
Post publications, located at http://www.usdoj.gov/oip/foi-upd.htm and 
http://www.justice.gov/oip/foiapost/mainpage.htm.

Changes to 38 CFR Part 1

1.550 Purpose

    Current Sec.  1.550 is entitled ``General'' and provides a general 
statement of VA policy regarding disclosure of information to the 
extent permitted by law, including when VA would otherwise be 
authorized to withhold the information, if the disclosure is for a 
useful purpose or when disclosure will not affect the proper conduct of 
official

[[Page 63121]]

agency business or constitute an invasion of personal privacy. Current 
Sec.  1.550 does not provide all of the general information that may be 
useful to the public regarding a request for VA records, including 
information necessitated by recent FOIA amendments and VA policy 
updates.
    We propose to amend Sec.  1.550 to generally provide more detail 
regarding VA's FOIA program. Proposed Sec.  1.550(a) would encourage 
requesters to read the VA FOIA regulations in conjunction with the 
FOIA. Based on our experience administering the FOIA, we believe that 
FOIA requesters will benefit from a greater awareness of the context in 
which their requests are addressed. In keeping with the legal and 
policy considerations associated with the administration of the FOIA, 
proposed Sec.  1.550(a) would authorize release of information on a 
discretionary basis and without regard to otherwise applicable 
restrictions in VA's FOIA regulations when current law and governmental 
policy permit such disclosures. Proposed Sec.  1.550(b) through (e) 
would advise requesters that other regulations also apply to requests 
for particular types of records, such as Privacy Act records.

1.551 Definitions

    With the exception of current Sec.  1.554a, regarding pre-
disclosure notification, and current Sec.  1.555, regarding fees, VA's 
current FOIA regulations do not contain definitions. Accordingly, we 
propose to add a definitions section in which we would consolidate all 
applicable definitions. By providing more definitions of terms commonly 
used in the FOIA process, proposed Sec.  1.551(a) would clarify the 
regulations, provide greater understanding for requesters, and assist 
in the implementation of VA's FOIA regulations. These definitions are 
proposed for clarification purposes only. No substantive effect is 
intended.

1.552 General Provisions

    Proposed Sec.  1.552(a) would create a section that would refer 
requesters to an Internet link through which they may obtain access to 
VA's information that is electronically available under the FOIA and 
information regarding VA's processing of FOIA requests.
    Section 552(a)(6)(B)(ii), as amended by the Openness in Government 
Act, requires Federal agencies to make available a Public Liaison to 
assist in disputes arising between the agency and individual 
requesters. Proposed Sec.  1.552(b) would identify VA's Public Liaisons 
and provide contact information.
    Section 552(e)(1) through (3) requires agencies to prepare an 
Annual Report that provides details regarding the agency's 
administration of its FOIA program. Proposed Sec.  1.552(c) would 
advise the public of this requirement and provide information 
concerning the procedures for obtaining a copy of VA's Annual Report.

1.553 Public Reading Rooms

    Proposed Sec.  1.553 would replace current Sec.  1.552(a). Current 
Sec.  1.552(a), in part, provides (1) that statements of policy and 
interpretations adopted by VA but not published in the Federal 
Register, and administrative staff manuals and staff instructions that 
affect any member of the public, unless promptly published and copies 
offered for sale, will be indexed by VA; (2) that such indexes will be 
published, quarterly or more frequently, and distributed or that VA 
will provide copies at a cost not to exceed the direct cost of 
duplication and both the index and the materials indexed will be made 
available to the public for inspection and copying; and (3) that public 
reading facilities will be maintained by VA Central Office and VA field 
facilities for this purpose.
    Proposed Sec.  1.553(a) would advise the public that VA maintains a 
public reading room electronically at its FOIA home page on the 
Internet, which contains records and a current subject matter index of 
reading room records (updated quarterly or more frequently) that the 
FOIA requires to be regularly made available for public inspection and 
copying. In so doing, proposed Sec.  1.553(a) would implement section 
552(a)(2) of the FOIA, as amended by the E-FOIA Act, which requires 
that for records created after November 1, 1996, agencies make such 
information available by electronic means. Proposed Sec.  1.553(a) 
would also prescribe that each VA component is responsible for 
determining which of its records are required to be made available 
electronically. Proposed Sec.  1.553(a) would generally update VA's 
FOIA program with regard to public access to records by advising the 
public of the electronic availability of records. The information 
provided in this provision would be a useful starting point for an 
individual seeking access to VA records.
    Section 552(a)(2), requires agencies to make available certain 
documents for public inspection and copying. Current Sec.  1.552(b) 
implements 552(a)(2), stating that when publishing or making available 
to the public any opinion, order, statement of policy, interpretation, 
staff manual or instruction to staff, identifying details will be 
deleted, and the deletion justified in writing, to the extent required 
to prevent a clearly unwarranted invasion of personal privacy. 
Similarly, proposed Sec.  1.553(b) would prescribe that VA may delete 
some of the information that it is making publicly available, 
including, for example, when its release would result in an unwarranted 
invasion of an individual's privacy. In substance, proposed Sec.  
1.553(b) restates the provisions of current Sec.  1.552(b).
    Proposed Sec.  1.553(c) would implement Sec.  552(a)(2), which 
requires that the agency make public reading room material available 
for inspection and copying. It would provide that some VA components 
may maintain physical public reading rooms where individuals may obtain 
publicly available information. In part, current Sec.  1.552(a) 
implements the same requirement, providing for the maintenance of 
public reading facilities. Proposed Sec.  1.553(c), therefore, would 
replace that portion of current Sec.  1.552(a) that implements this 
requirement. It would also provide that contact information regarding 
VA components having physical public reading rooms is available on VA's 
Internet home page. Proposed Sec.  1.553(c) would facilitate an 
individual's access to a physical public reading room by providing 
easily accessible information regarding the availability of reading 
rooms within VA, thereby facilitating an individual's access to reading 
room material.

1.554 Requirements for Making Requests

    Proposed Sec.  1.554 would replace current Sec.  1.553. Current 
Sec.  1.553(a) prescribes that except for records made publicly 
available, requests for records will be processed under current Sec.  
1.553(b) (discussed below) and any other law applicable to the 
confidentiality of information. Current Sec.  1.553(a) also provides 
that VA will consider making records available that it is permitted to 
withhold under the FOIA if it determines that such disclosure could be 
in the public interest.
    Current Sec.  1.553(b) prescribes the requirements for submitting a 
FOIA request, including that the request must be in writing over the 
signature of the requester, that it must contain a reasonable 
description of the record sought so that it may be located with 
relative ease, and that it should be made to the office having 
jurisdiction of the record desired. Proposed Sec. Sec.  1.554(a) and 
1.554(b) would replace current Sec.  1.553(a) and (b) and clarify the 
procedure for submission of requests for

[[Page 63122]]

records under the FOIA. The proposed provisions would prescribe that VA 
will accept a facsimile (fax) or electronic mail (e-mail) FOIA request 
if it contains an image of the requester's handwritten signature. These 
amendments are necessary to clearly identify the acceptable methods of 
submitting requests and expand the methods by which requests may be 
made. They would also provide more flexibility for individuals in 
submitting a FOIA request to VA and would authorize requests in keeping 
with updated technology. Proposed Sec.  1.554(a) also would clarify 
other administrative details with respect to making a FOIA request, 
such as referring the requester to VA's list of FOIA contacts, advising 
the requester to direct the request to the proper office, and referring 
the requester to VA's FOIA Reference Guide.
    As a general rule, a record covered by the Privacy Act, 5 U.S.C. 
552a, will only be released at the request of, or with the prior 
authorization by, the subject of the record. Proposed Sec.  1.554(c) 
would add a provision advising requesters that if they wish to receive 
information about another individual, the requester should provide 
proof of his or her authorization to receive that information to cover 
instances where, after weighing personal privacy interest against the 
public interest under 5 U.S.C. 552(b)(6), FOIA does not require 
disclosure. Based on our experience in administering the FOIA, we 
believe that by providing more detailed information regarding the 
submission of FOIA requests and making such information available 
electronically, proposed Sec.  1.554(a) through (c) would facilitate 
the submission of FOIA requests and would expedite the FOIA process, 
including by directing the request to the proper address.
    Section 552(a)(3)(A) provides that upon a request for records that 
``reasonably describes'' the records and is made in accordance with the 
agency's rules and procedures, the agency shall make such records 
available. Proposed Sec.  1.554(d)(1) would clarify VA's implementation 
of the requirement that the request reasonably describe the records 
sought. Specifically, proposed Sec.  1.554(d)(1) would expand current 
Sec.  1.553(b) by requiring that requesters provide, to the extent 
possible, sufficient detail in requests to allow VA to formulate a 
response. It would also advise requesters that requests that lack 
specificity may not be considered ``reasonably described.'' Based on 
our experience in administering the FOIA, we believe these proposed 
amendments will make the FOIA process more efficient in that it would 
clarify for requesters the required level of detail for their requests, 
thereby allowing VA personnel to locate any responsive records more 
easily. The amendments would generally clarify the request process.
    Proposed Sec.  1.554(d)(2) would advise the requester that requests 
for voluminous amounts of records may be considered ``complex'' or may 
meet the criteria for ``unusual circumstances'' as set forth in 
proposed Sec.  1.556; both concepts are discussed in detail below 
regarding proposed Sec.  1.556.
    Proposed Sec.  1.554(d)(3) would expand current Sec.  1.553(b) by 
prescribing an opportunity for requesters to modify their requests if 
they do not reasonably describe the records or otherwise do not meet 
the regulatory requirements for requests. Proposed Sec.  1.554(d)(3) 
would allow VA to address a request even if the request does not 
initially meet regulatory requirements. Based on VA's experience, 
handling any insufficiencies or ambiguities in the request at the 
outset would avoid delay in addressing the request and provide the 
requester an avenue for early resolution of the request.
    Under section 552(a)(3)(A), a FOIA request must reasonably describe 
the record sought. Upon receipt, VA must respond to the request, 
ordinarily, within 20 days (excepting Saturdays, Sundays, and Federal 
legal public holidays). Proposed Sec.  1.554(d)(4) would prescribe that 
the time limit for addressing a FOIA request does not begin to run 
until VA determines that the requester has reasonably described the 
records and that, if clarification is sought and not received within 
ten business days, VA will close its file on the request. In our 
experience, the enforcement of this provision would assist in VA's 
administration of the FOIA by clarifying VA's process and providing a 
firm deadline by which an individual must respond to a request for 
clarifying information. In so doing, VA would place responsibility on 
the requester to follow request procedures, as required by section 
552(a)(3)(A), and promptly reply to VA requests for clarifying 
information. VA cannot process a request that does not reasonably 
describe the records. Attempts to address such a request would be 
futile and may delay action on other requests that meet the 
requirements. It is imperative, therefore, that the requester 
reasonably describes the record that is the subject of the request.
    Section 552(a)(4)(A) sets forth the requirements regarding the 
payment of fees for processing record requests. Proposed Sec.  1.554(e) 
would provide preliminary information regarding the payment of fees 
(fees are discussed in more detail in proposed Sec.  1.561). It is 
included at an introductory level to notify requesters of the general 
fee guidelines. Proposed Sec.  1.554(e) would restate current Sec.  
1.555(b)(2) regarding notification of an anticipated fee in excess of 
$25.00 or the amount that the requester has indicated a willingness to 
pay. It would also restate current Sec.  1.555(g)(4)(i) and (ii) 
regarding advance payment where the estimated fee is $250.00 or higher 
or the requester has previously failed to pay a fee in a timely manner.
    Proposed Sec.  1.554(e) would also implement section 
552(a)(6)(A)(ii), as amended by the Openness in Government Act, which 
authorizes an agency to toll the response due date if it is awaiting 
information from the requester or if clarification is being sought 
regarding fee issues. Proposed Sec.  1.554(e) would prescribe tolling 
of the time limit for responding to a FOIA request if necessary to 
clarify issues regarding a fee assessment. It would also amend the 
provisions in current Sec.  1.555 by advising requesters that the 
responding VA component has authority to require written assurance that 
the fee will be paid, and that if the component's FOIA Officer does not 
receive a response either to a request for more information or, under 
certain circumstances, a request for an advance payment, he or she may 
close the file. Further, proposed Sec.  1.554(e) would advise 
requesters that even if they are seeking a fee waiver, they may 
indicate a willingness to pay a fee up to a certain amount. These 
amendments are necessary to clarify VA policy regarding the assessment 
of FOIA processing fees and how fee issues may affect the processing of 
an individual's request. Based on our experience, we believe that 
setting out the parameters of the FOIA process, including with respect 
to fees, will encourage resolution of administrative issues early in 
the processing of a request, thus streamlining the process and avoiding 
unnecessary delay.
    Proposed Sec.  1.554(f) would prescribe that a request must meet 
the requirements of proposed Sec.  1.554 in order to be considered a 
perfected request. We propose this amendment to ensure that FOIA 
requesters understand that VA requirements must be met before the 
Department devotes resources to processing any request.

1.555 Responsibility for Responding to Requests

    Proposed Sec.  1.555 would replace current Sec.  1.553a. Proposed 
Sec.  1.555(a)

[[Page 63123]]

would provide at the outset that the component's FOIA Officer may 
process the request or refer it to the appropriate VA office, that 
office will provide the FOIA Officer with all documents in their 
possession, and that the search cut-off date generally is the date that 
the search begins, i.e., no documents created after that date will be 
considered responsive to the FOIA request. If another date is used, the 
requester will be advised. In our experience, this amendment is 
necessary to clarify the processing of requests within the agency. This 
amendment, for example, would resolve questions about the FOIA 
Officer's authority to access records potentially responsive to a FOIA 
request and would establish a cut-off date for searches. Removing any 
ambiguity that exists with regard to the application of the FOIA or 
VA's processing of FOIA requests would allow the system to operate more 
effectively and efficiently.
    Proposed Sec.  1.555(b) would replace current Sec.  1.553a(a) and 
provide that the individual in each component who will be responsible 
for granting or denying a request is the ``FOIA Officer'' rather than 
the ``proper employee designated.'' This amendment would clarify that 
the individual responsible for addressing FOIA requests is the FOIA 
Officer and is intended to encourage consistency throughout the agency 
in handling FOIA requests.
    Proposed Sec.  1.555(c) and (d) would replace current Sec.  1.553a 
and prescribe that the FOIA Officer will transfer to, or consult with, 
another component or agency regarding, a request, including a request 
that involves classified information, when another component or agency 
is better able to address the request. Proposed Sec.  1.555(e) would 
provide that the FOIA Officer will notify the requester when all or 
part of the request has been referred to another component or agency. 
We propose this amendment to provide as much information as possible to 
requesters about the processing of their requests. Informing requesters 
of the administrative actions that may occur with respect to their 
requests will assist in the effective administration of the FOIA 
program.

1.556 Timing of Responses to Requests

    Proposed Sec.  1.556 would replace current provisions and add 
provisions regarding the treatment of FOIA requests. Proposed Sec.  
1.556(a) would add a provision stating generally that VA components 
will respond to FOIA requests according to their order of receipt.
    Proposed Sec.  1.556(b)(1) would prescribe VA's use of a multitrack 
processing system in which, once received, FOIA requests are placed in 
one of two tracks based upon the work and time required to process the 
request. Proposed Sec.  1.556(b)(2) would require VA processors to 
advise requesters of the track to which their request is assigned 
(simple or complex). Under the proposed rule, VA would provide the 
requester the opportunity to discuss his or her request with the 
processing VA component in order to qualify for the faster processing 
track. These proposed provisions implement sections 552(a)(6)(D)(i) and 
(ii), which authorize agency rulemaking regarding multitrack processing 
of records requests and the opportunity to qualify for the faster 
track. Multitrack processing would enable VA to organize its FOIA 
request intake in such a way as to provide a greater understanding of 
the nature and extent of the work required to address various requests. 
In addition, it would allow personnel to organize their workload in 
accordance with varying degrees of complexity of the requests 
presented. Lastly, it would allow requesters to modify their requests 
to enable VA to address the request more expeditiously. In our 
experience, requesters often frame requests in a way that would include 
more material than may be necessary to answer their inquiry. Allowing 
requesters to work with VA to clarify a request before the agency 
expends resources on gathering documents that the requester does not 
want would allow a quicker resolution for the requester and would allow 
the agency to allocate resources to other requests.
    Proposed Sec.  1.556(c) would amend current Sec.  1.553a(d) in that 
it would set forth the circumstances under which VA may determine that 
unusual circumstances exist with regard to addressing a FOIA request. 
The definition of ``unusual circumstances'' is prescribed at 5 U.S.C. 
552(a)(6)(B), and includes, for example, the need to collect records 
from a facility other than the office processing the request. Proposed 
Sec.  1.556(c) would add a provision that if VA requires an extension 
of more than 10 business days to address the request, the requester may 
modify the request so that it may be processed within applicable time 
limits or arrange an alternative time period with the VA component that 
is processing the request. Similar to proposed Sec.  1.556(b)(2), 
proposed Sec.  1.556(c) would prescribe consultation with the requester 
to allow for modification of the request or arrange an alternative time 
period within which VA must process the request. This provision 
encourages early clarification of the request and should promote 
expeditious processing. Our experience is that communication with the 
requester in cases such as this is beneficial to all parties, as it 
clarifies issues for the agency and notifies the requester that the 
agency is interested in processing the request as expeditiously as 
possible.
    Proposed Sec.  1.556(c)(1)(i) through (iii) would replace current 
Sec.  1.553a(d)(1) through (3) and incorporate statutory requirements 
in section 552(a)(6)(B)(i) through (iv) regarding the meaning of 
``unusual circumstances.''
    Proposed Sec.  1.556(c)(2) would authorize the aggregation of 
requests if VA determines that certain requests are from the same 
requester, or a group of requesters acting in concert, actually 
constitute the same request and that as such, the requests would 
otherwise meet the requirements for ``unusual circumstances,'' as 
defined in section 552(a)(6)(B)(iii). This provision would allow VA to 
address the substance of a request rather than the form of the request; 
in other words, when a request, in substance, meets the unusual 
circumstances requirements, the agency would address it as such. The 
proposed revision in this regard would result in a more equitable 
distribution of FOIA requests and request workload as it would allow 
the agency to consider the nature of the request in determining how to 
characterize it.
    Section 552(a)(6)(E)(i) through (vi) requires VA rulemaking 
regarding the procedures for expedited processing of requests. We 
propose to implement these procedures in Sec.  1.556(d). Proposed Sec.  
1.556(d)(1) would prescribe the circumstances that represent a 
``compelling need'' for the information, a requirement that must be met 
in order to meet the requirement for expedited review under the FOIA. 
Proposed Sec.  1.556(d)(2) restates section 552(a)(6)(E)(vi), which 
provides that a requester seeking expedited processing must submit a 
certified statement to the processing agency regarding the request for 
expedited review. Proposed Sec.  1.556(d)(3) restates section 
552(a)(6)(E)(ii), which requires agencies to make a determination 
regarding a request for expedited processing within 10 days of the 
receipt of the request.

1.557 Responses to Requests

    Proposed Sec.  1.557(a) would require the processing VA component 
to acknowledge receipt of the request and assign a docket number to the 
request. This provision is intended as an

[[Page 63124]]

administrative tool that components would use to organize incoming 
requests and to provide the requester with pertinent information should 
he or she wish to contact VA for information.
    Proposed Sec.  1.557(b) would implement the provisions of section 
552(a)(3)(B) through (C) to the extent that the proposed rule would 
require a component properly in receipt of a request to conduct a 
reasonable search for records, including records in electronic form or 
format, and to provide those records in the form or format requested by 
the individual, if readily reproducible in that form or format. In this 
regard, proposed Sec.  1.557(b) would essentially restate the FOIA 
provisions. In addition, proposed Sec.  1.557(b) would clarify that any 
responsive records would be those in the component's possession and 
control as of the date the search for responsive records begins and 
would provide for notification to the requester if a fee is due under 
proposed Sec.  1.561. Adding this interpretation of the search date and 
initial fee assessment requirements would eliminate any ambiguity with 
regard to the time frame of the search and any resulting fee.
    Proposed Sec.  1.557(b) also would implement section 552(b), which 
requires deletion of certain exempt portions of records and 
identification of the FOIA exemption under which the deletion is made. 
This proposed revision would also restate, in part, current Sec.  
1.554(a), which prescribes that records will be provided after deletion 
of material exempt under the FOIA, as discussed in current Sec.  
1.554(a).
    Proposed Sec.  1.557(c) would restate section 552(a)(6)(A) and 
replace current Sec.  1.553a(b). The proposed rule would prescribe a 
20-day deadline in which a VA component will act upon a request and a 
10-day limit for referring a request to another component.
    Proposed Sec.  1.557(d) would implement section 552(a)(6)(F), which 
requires agencies to provide requesters a statement regarding the 
amount of information withheld and the FOIA exemption under which 
information is withheld, unless providing such a statement would harm 
an interest protected by the applicable exemption, and would replace 
current Sec.  1.557(a). The proposed rule would provide specific 
examples of the types of determinations that are adverse to requesters, 
restate the requirement to include the name of the individual 
responsible for the denial, and prescribe a statement of the reasons 
for the denial and notice regarding the right to appeal under proposed 
Sec.  1.559. Placing the information that will be included in an 
adverse determination in one provision will clarify the FOIA process 
and benefit all parties involved. Our intent in proposing this 
provision is to provide VA components clear and consistent direction 
regarding the requirements for adverse determinations and to ensure 
that requesters receive notice concerning the reasons for the 
determination and their appeal options.

1.558 Business Information

    Section 552(b)(4) exempts from release matters that are trade 
secrets and commercial or financial information obtained from a person 
that is privileged and confidential. Executive Order 12,600 establishes 
the procedures to be followed when the agency believes that responsive 
records include such information. Ordinarily, these provisions apply 
when a request is received for information submitted by an individual 
doing business with VA who has provided to VA its business information, 
or information that he or she considers commercial or confidential; 
this individual is referred to as the ``submitter'' of the information. 
The ``submitter'' typically designates the information as protected, as 
discussed further below.
    Proposed Sec.  1.558 would replace current Sec.  1.554a in 
addressing the issues raised by business information; it would replace 
the term ``confidential commercial'' information used in current Sec.  
1.554a with ``business'' information. This revision would provide 
individuals specific information at the outset concerning whether their 
request would involve such information. Proposed Sec.  1.558(a) would 
replace current Sec.  1.554a(a) and provide an introductory statement 
regarding the consideration of business information pursuant to 
proposed Sec.  1.558. Proposed Sec.  1.558(b) essentially would replace 
current Sec.  1.554a(d), which outlines the requirements for a 
submitter to designate records as business information. Proposed Sec.  
1.558(b) varies from current Sec.  1.554a(d) in that it would allow for 
the business information designation to take place within a reasonable 
time after submission of the information to VA. Current Sec.  1.554a(d) 
contains the same language but qualifies the ``reasonable time'' as not 
later than 60 days after receipt of the information by VA. In addition, 
proposed Sec.  1.558(b) would add a provision stating that the 
designation will be considered by the VA component processing the 
request, but will not control the FOIA Officer's determination. Based 
on VA's experience in administering current FOIA provisions, VA 
believes that these revisions would allow flexibility with regard to 
the submitter's designation and would clarify the role of the 
designation for the submitter, i.e., the submitter should understand at 
the outset that while records may be designated as business 
information, the designation itself does not necessarily determine the 
outcome of the VA component's decision, which will be made in 
compliance with applicable laws.
    Proposed Sec.  1.558(c)(1) would replace current Sec.  1.554a(c) 
and prescribe the requirements for notice to a submitter of business 
information whenever a request for that information is being processed 
under the FOIA. Proposed Sec.  1.558(c)(1) would differ from current 
Sec.  1.554a(c) by requiring the submitter to provide objections to the 
disclosure within the ``time period specified'' in the notice, as 
opposed to within 10 working days, as prescribed in current Sec.  
1.554a(c). This revision is repeated in proposed Sec.  1.558(d). This 
revision would allow VA the flexibility to meet statutory time limits 
and/or change the number of days in which a response is required as a 
policy matter without requiring a change in its regulations. Proposed 
Sec.  1.558(c)(1) also would delete the current requirement for the 
notice to be mailed by certified mail, return receipt requested. Our 
experience is that certified mail may unnecessarily delay the 
notification process when there are other suitable alternatives. 
Proposed Sec.  1.558(c)(1) would add a provision allowing the FOIA 
Officer to post the notification in a place reasonably likely to 
accomplish the required notice when the notice concerns a large number 
of submitters. This proposed provision would allow the FOIA Officer 
greater flexibility and expedite notice by allowing electronic or other 
public notification of multiple submitters simultaneously.
    Proposed Sec.  1.558(d) would replace current Sec.  1.554a(f) and 
eliminate ``or designee'' when referring to the submitter. We intend 
that this change will bring VA's FOIA regulations into compliance with 
Executive Order 12600, which established Federal policy regarding 
agency communication only with the submitter of information.
    Proposed Sec.  1.558(d) would require that the submitter's 
objections be contained in a single written response and that oral or 
multiple subsequent written responses ordinarily would not be 
considered. Based on our experience administering the FOIA with regard 
to business information, we believe that this revision would create a 
more efficient process by requiring a cohesive statement from the 
submitter rather than allowing continued or successive

[[Page 63125]]

submissions. Additionally, eliminating oral responses would better 
develop the administrative record for all parties.
    Proposed Sec.  1.558(d) would also provide that if the submitter 
does not respond to VA's notification within the specified time limit, 
the submitter will be considered to have no objection to the 
disclosure. This provision would impose a duty to respond within the 
time limit in order to ensure that the submitter's objections, if any, 
can be properly considered in an efficient and timely manner. This 
proposed provision would also eliminate the requirement that the 
submitter provide objections within 10 days after receipt by the 
submitter of notification of a request for the submitter's information. 
Instead, the proposed rule would allow the FOIA Officer to set forth a 
``specified time limit'' within which to respond.
    Proposed Sec.  1.558(d) would eliminate the language in current 
Sec.  1.554a(f), which prescribes that information provided by the 
submitter would itself be subject to the FOIA. Our experience is that 
the existing notice in current Sec.  1.554a(f) has a chilling effect on 
submitters detailing their objections to disclosure and discussing the 
likelihood of disclosure causing substantial competitive harms. 
Additionally, any submission of information to the government may be 
subject to the FOIA, thus making that language superfluous.
    Proposed Sec.  1.558(e) would replace current Sec.  1.554a(f)(3) 
regarding the FOIA Officer's consideration of the submitter's 
objections in making a determination whether to release information. 
While current Sec.  1.554a(f)(3), for example, states that VA will 
consider a submitter's comments if received within a 10-day time limit, 
proposed Sec.  1.558(e) states that information provided by the 
submitter after the ``specified time limit'' will not be considered. 
While a specific time frame is not expressly stated in the proposed 
regulation, the regulation does provide for consideration of comments 
within a time frame specified by the FOIA Officer.
    Proposed Sec.  1.558(e) also would replace current Sec.  
1.554a(f)(3) with regard to the information contained in the written 
notice to the submitter. The proposed regulation makes no substantive 
changes to this provision.
    Proposed Sec.  1.558(f) would replace current Sec.  1.554a(i)(1) 
through (3), identifying when the pre-disclosure notification 
requirements need not be followed. It would add to the provisions in 
current Sec.  1.554a(i)(3) that pre-disclosure notification is not 
required if the disclosure is required by regulation issued in 
accordance with Executive Order 12600 or any other Executive Order. In 
this regard, the proposed rule would ensure that Executive Orders are 
included, as appropriate, as a basis for the disclosure of information. 
Proposed Sec.  1.558(f) would delete references to current Sec.  
1.554a(i)(4) through (6) because VA's experience is that these 
provisions have not been utilized, and the revised provisions would, if 
necessary, cover the instances referred to in the referenced sections.
    Proposed Sec.  1.558(g) would replace current Sec.  1.554a(g)(1) 
and would make no change to that provision. Current Sec.  1.554a(g)(2) 
regarding notice to a requester when a submitter is given an 
opportunity to provide comments about the disclosure would be deleted 
because under the proposed rule requesters would be on notice regarding 
VA's contacts with submitters. Proposed Sec.  1.558(g) would prescribe 
notice to a requester that the request is being processed under Sec.  
1.558, including the provisions in Sec.  1.558(c) and (e) prescribing 
notice to submitters regarding opportunity to comment. Current Sec.  
1.554a(g)(3) regarding notice to a submitter and requester of a final 
decision on disclosure of business information would also be deleted as 
unnecessary. Submitters would instead be given notice of an impending 
agency decision on disclosure of business information under proposed 
Sec.  1.558(e). The requester would be notified when a final agency 
decision is issued pursuant to proposed Sec.  1.557.

1.559 Appeals

    Section 552(a)(6)(A) provides that when an agency component 
responds to an initial request for records, it shall provide the 
requester with the right to appeal any adverse determination to the 
head of the agency.
    Proposed Sec.  1.559 would replace current Sec.  1.557(b). Current 
Sec.  1.557(b) states only that the final agency decisions in appeals 
will be made by the VA General Counsel or Deputy General Counsel. 
Proposed Sec.  1.559(a) would allow for an informal resolution of the 
request prior to an appeal in appropriate cases. We believe that in 
appropriate cases, requesters may benefit from contact with the FOIA 
Officer or VA component addressing the request and an attempt to 
resolve outstanding issues with regard to the request. The requester 
may seek informal resolution, for example, when he or she has not 
received a response to the request. Direct communication between the 
FOIA Officer and the requester could resolve the issue and therefore 
make an appeal unnecessary.
    Proposed Sec.  1.559(b) would establish authority for the VA Office 
of Inspector General (OIG) to handle appeals related to OIG records. 
This would allow the OIG to establish its independence regarding its 
own records.
    Proposed Sec.  1.559(b) through (c) would provide details regarding 
how to file an appeal and the form that an appeal may take and a 
reference to additional information available online.
    Proposed Sec.  1.559(d) would establish a 60-day time limit from 
the date of any adverse determination concerning the FOIA request for 
the requester to file an appeal. Current regulations do not address the 
timeliness of an appeal. Based upon our experience, we believe that 
prescribing a period within which an appeal may be filed provides an 
effective tool for establishing workload and allocating resources. We 
have determined that a 60-day time limit would be reasonable given the 
convenient means by which an individual may quickly file an appeal. We 
note that the proposed 60-day appeal period would be the same as the 
appeal period established by the Department of Justice for its FOIA 
appeals. We also believe that the requester should have the 
responsibility to follow through with the appeal if he or she wishes 
the request to be addressed and that the 60-day appeal period would 
provide ample time to exercise that responsibility. Further, the appeal 
process would be more seamless and effective if requesters included 
necessary information in their appeal notices, such as the information 
listed in proposed Sec.  1.559(d). Based on our experience, we believe 
that encouraging requesters to initially provide as much information as 
possible would ease the administrative burdens of gathering relevant 
information and processing the appeal. Proposed Sec.  1.559(d) would 
also provide that an appeal is not perfected until either the 
information requested is received or VA determines that the appeal is 
otherwise sufficiently defined. In our experience, appeals occasionally 
are so lacking in detail that it requires an excessive amount of time 
to identify the issues or records involved. Requesters would provide 
more clarity and therefore would require less labor-intensive inquiries 
by VA if they initially provided the information that is necessary to 
process the appeal. Proposed Sec.  1.559(d) would also delegate 
authority to decide appeals to the VA Assistant General Counsel who has 
jurisdiction over FOIA matters. This amendment would add the Assistant 
General Counsel that has jurisdiction over records disclosure matters 
to the list of individuals authorized to make

[[Page 63126]]

such final agency determinations thus streamlining the appeal process 
while continuing to provide the thorough legal analyses currently 
afforded FOIA appeals.
    Proposed Sec.  1.559(e) would prescribe the content of a decision 
on appeal. Prescribing these requirements would facilitate consistency 
in decision-making and fully inform requesters regarding their right to 
a complete appellate decision from the agency.
    Proposed Sec.  1.559(f) would require a requester to file an appeal 
prior to seeking court review. This provision would provide the 
opportunity for resolution of the requester's concerns prior to 
initiating litigation and ensure that the matter is ready for judicial 
review.

1.560 Maintenance and Preservation of Records

    The Federal Records Act, 44 U.S.C. chapter 31, addresses record 
preservation and destruction by Federal agencies. Section 3102 of title 
44, U.S.C., requires that the head of an agency establish and maintain 
a records management system.
    Proposed Sec.  1.560(a) would require that VA components maintain 
FOIA requests and copies of pertinent records in accordance with NARA's 
General Records Schedule.
    Proposed Sec.  1.560(b) would require that the FOIA Officer 
maintain copies of records that are the subject of a pending request, 
appeal, or lawsuit under the FOIA. It would also prescribe that a copy 
of the records shall be provided to the Office of the General Counsel 
upon request.
    These provisions would underscore the importance of maintaining 
records as appropriate and prescribe consistent compliance within VA. 
They would emphasize that administrative record-keeping is an important 
function in the FOIA program and that in order for VA components to 
build an administrative record, if required, information must be 
preserved as appropriate.

1.561 Fees

    In accordance with section 552(a)(4)(A), an agency is required to 
promulgate regulations specifying the schedule of fees applicable to 
processing requests under the FOIA and establishing procedures and 
guidelines for determining when fees will be waived or reduced. In 
addition, agencies must implement the 1987 Fee Schedule and Guidelines 
published by the Office of Management and Budget (OMB). See The Freedom 
of Information Reform Act of 1986; Uniform FOIA Fee Schedule and 
Guidelines, 52 FR 59 (27 March 1987).
    Proposed Sec.  1.561 replaces current Sec.  1.555. In part, 
proposed Sec.  1.561(a) would replace current Sec.  1.555(b)(1) in 
providing a general introduction and rules regarding fees. Proposed 
Sec.  1.561(a) would add that the VA component would collect prescribed 
fees before releasing copies of the information to the requester and 
would include a provision regarding payment of fees. Lastly, proposed 
Sec.  1.561(a) would direct a requester's attention to other VA 
statutes that contain provisions related to access to records and the 
fees for such access. These amendments would provide introductory 
comments regarding VA's fee provisions and are intended to clarify and 
highlight VA's general framework for the assessment of fees.
    Proposed Sec.  1.561(b) would replace current Sec.  1.555(a) and 
would contain the definitions of terms used regarding FOIA fees. 
Proposed Sec.  1.561(b)(1) would restate that portion of current Sec.  
1.555(d)(4) that defines ``all other requesters'' as any requester that 
does not fit within any other category; the proposed inclusion of this 
definition in this section would ensure that all pertinent definitions 
are included.
    Proposed Sec.  1.561(b)(2) would replace current Sec.  1.555(a)(1) 
and would restate the definition of ``commercial use request.'' The 
proposed regulation would make no substantive change to current Sec.  
1.555(a)(1).
    Proposed Sec.  1.561(b)(3) would replace current Sec.  1.555(a)(2) 
and would restate the definition of ``direct costs.'' The proposed 
regulation would make no substantive change to current Sec.  
1.555(a)(2).
    Proposed Sec.  1.561(b)(4) would replace current Sec.  1.555(a)(3) 
and would restate the definition of ``duplication.'' The proposed 
regulation would make no substantive change to current Sec.  
1.555(a)(3).
    Proposed Sec.  1.561(b)(5) would replace current Sec.  1.555(a)(4) 
and would restate the definition of ``educational institution.'' The 
proposed regulation would make no substantive change to current Sec.  
1.555(a)(4).
    Proposed Sec.  1.561(b)(6) would replace current Sec.  1.555(a)(5) 
and in large part, restate the definition of ``non-commercial 
scientific institution.'' The proposed regulation would make no 
substantive change to the provisions of current Sec.  1.555(a)(5) with 
the exception of the addition that the requester must show that the 
request is authorized by and made under the auspices of a qualifying 
institution. This amendment would clarify the requirement for 
submitting such a request and would place responsibility on the 
requester to establish that it fits within this fee category. Our 
experience indicates that this requirement will assist in resolving the 
status of a fee requester at the outset and will clarify the 
requirements for such requesters.
    Proposed Sec.  1.561(b)(7) would replace current Sec.  1.555(a)(6). 
It would restate current Sec.  1.555(a)(6), but also implement the 
change in the definition of news media in section 552(a)(4)(A)(ii), 
which defines ``representative of the news media'' as described 
immediately below. The proposed rule would prescribe that a member of 
the news media is one who gathers information of potential interest to 
the public, uses his or her editorial skills to turn the raw material 
into a distinct work, and distributes that work to an audience. We 
propose to add language that alternative media sources may be 
considered news media if they otherwise meet the definition of news 
media. We believe this proposed language would underscore that the 
entity seeking classification as a news media must also meet the other 
criteria set forth in the definition of news media. Proposed Sec.  
1.561(b)(7) would also delete a reference to freelance journalists' 
option to seek a reduction or waiver of fees. We believe placing the 
reference here would be superfluous, as waiver or fee reduction is 
discussed in the introductory paragraph of proposed Sec.  1.561(b)(7). 
In accordance with section 552(a)(4)(A)(ii), proposed Sec.  1.561(b)(7) 
would add language that a representative of the news media must not be 
seeking records for a commercial use.
    Proposed Sec.  1.561(b)(8) would replace current Sec.  1.555(a)(7). 
The proposed rule would essentially restate current Sec.  1.555(a)(7) 
and would add examples of the types of records that are subject to 
review in a FOIA request. We believe that providing examples would 
provide more clarity for requesters concerning the potential assessment 
of fees.
    Proposed Sec.  1.561(b)(9) would replace the definition of search 
in current Sec.  1.555(a)(8). The proposed rule would make no 
substantive change to current Sec.  1.555(a)(8) with the exception of 
the deletion of the last sentence in current Sec.  1.555(a)(8) 
regarding excluding review time. We believe that this language is 
unnecessary, as we have previously defined the term search in the 
context of the FOIA.
    Proposed Sec.  1.561(c) would replace current Sec.  1.555(d) 
regarding categories of requesters and fees charged each category. The 
introductory language of proposed Sec.  1.561(c) and (c)(1) (commercial 
use requesters) restates the

[[Page 63127]]

introductory language of current Sec.  1.555(d) and(d)(1) (commercial 
use requesters), with the exception of adding language noting that the 
provisions apply unless a waiver or reduction of fees applies. We 
believe these proposed additions would clarify application of the fee 
provisions by directing the requester's attention to the exceptions 
that apply to the assessment of fees. In addition, proposed Sec.  
1.561(c)(1) would delete language from current Sec.  1.559(d)(1) that 
states that a requester must reasonably describe the record requested. 
We believe that this language is superfluous in light of the full 
discussion of reasonably described records in proposed Sec.  1.554(d).
    Proposed Sec.  1.561(c)(2) and (3) would replace current Sec.  
1.555(d)(2) and (3), respectively. Proposed Sec.  1.561(c)(2) and (3) 
would refer the requester to the potential waiver or reduction of fees 
and would reiterate the charges assessed to an educational institution 
and a representative of the news media. It would delete language in 
current Sec.  1.559(d)(2) and (3) regarding the requirements that must 
be met to be categorized as an educational and non-commercial 
scientific institution or a representative of the news media. The 
criteria for classification of these types of requesters would be 
clearly set forth in the definitions section.
    Proposed Sec.  1.561(c)(4) would replace current Sec.  1.555(d)(4). 
Proposed Sec.  1.561(c)(4) essentially restates the provisions of 
current Sec.  1.555(d)(4) as to the charges that are assessed for an 
all other requester and its reference to the waiver or reduction of 
fees. Proposed Sec.  1.561(c)(4) would delete language from current 
Sec.  1.555(d)(4) that refers to requests for records retrievable by 
personal identifiers and the treatment of such requests. In doing so, 
the proposed rule would more clearly distinguish between requests made 
under the FOIA and requests made under other authority. Based on our 
experience, we believe that such distinctions are helpful in that 
requesters can determine which procedures are applicable to their 
requests and will be able to more clearly identify the action that is 
required. In addition, proposed Sec.  1.550 provides information 
concerning the various disclosure statutes and the distinctions between 
those statutes. Including that information here would be superfluous.
    Proposed Sec.  1.561(d) would clarify the types of fees that VA may 
charge for processing requests. The introductory paragraph in proposed 
Sec.  1.561 would provide a general statement notifying requesters that 
the fees to be charged are defined in proposed Sec.  1.561. Proposed 
Sec.  1.561(d)(1)(i) would clarify how a search fee is assessed and 
would advise that fees are charged in quarter hour increments. This 
provision would better advise requesters concerning the potential for a 
fee assessment and how VA will assess the fee. This information may 
also be helpful to requesters seeking to identify more precisely the 
records that are the subject of their request.
    Proposed Sec.  1.561(d)(1)(ii), in part, would replace current 
Sec.  1.555(c)(2). It would reiterate how fees are assessed in cases 
requiring a computer search and make no substantive change in that 
regard. As an administrative matter, it would add a reference to the 
proposed-rule provisions that discuss when a fee would not be charged 
and when 2 hours of free search time would be granted.
    Proposed Sec.  1.561(d)(2) and (3) would add provisions clarifying 
when duplication and review fees, respectively, apply, and how such 
fees are calculated. These provisions would provide VA and requesters 
clear rules for determining the level of fees that may be assessed, 
depending upon the request submitted. Proposed Sec.  1.561(d)(3), for 
example, would prescribe in detail when a fee may be charged for 
consideration of an exemption and when it may not. We believe that this 
type of detail would be useful to requesters as a means of explaining 
why certain charges are made or not made and accordingly, would 
potentially assist in VA's administration of the FOIA.
    Proposed Sec.  1.561(e)(1) and (2) would implement administrative 
provisions regarding the assessment of fees. In accordance with 
proposed Sec.  1.561(e)(2), for example, more than half of a quarter-
hour period must be spent on search and review for the requester to be 
charged for that quarter-hour. This proposed provision represents VA's 
determination that it is administratively worthwhile only to collect a 
fee representing more than one half of a quarter-hour increment.
    Proposed Sec.  1.561(e)(3) would implement section 
552(a)(4)(A)(viii) by prescribing that certain fees may not be charged 
to various types of requesters if the agency fails to meet the time 
limits set forth in agency regulations. The proposed provision 
clarifies that duplication fees may still be charged to commercial use 
requesters and ``all other'' requesters.
    Proposed Sec.  1.561(e)(4), in part, would replace current Sec.  
1.555(c) and prescribe that the agency will provide the first 100 one-
sided pages and the first 2 hours of search time without charge. We do 
not intend any substantive change to this provision.
    Proposed Sec.  1.561(e)(5), in part, would replace current Sec.  
1.555(c), which provides that no fee will be charged if the cost of 
collecting the fee is equal to or greater than the fee itself. Proposed 
Sec.  1.561(e)(5) would clarify that if the total fee calculated is 
less than $25.00, no fee will be charged. Prescribing a dollar amount 
in this provision should clarify the regulation for requesters and 
remove any ambiguity that may exist in current regulations regarding 
permissible fees.
    Proposed Sec.  1.561(e)(6) would prescribe that VA may provide free 
copies of records or free services in response to requests from other 
government agencies or congressional offices when to do so would assist 
in providing medical care to a patient or to further VA's mission. This 
provision would allow the agency the flexibility to respond to certain 
requests promptly without addressing issues that may arise with regard 
to fees.
    Proposed Sec.  1.561(f) would add a chart that contains the 
categories of fee requesters and a summary of the types of fees that VA 
may charge. Proposed Sec.  1.561(f) would provide a convenient 
administrative tool for VA officials and requesters, which would 
summarize information previously set forth in the proposed regulations 
and would not make any substantive changes.
    Proposed Sec.  1.561(g) would replace current Sec.  1.555(e). 
Current Sec.  1.555(e) consists of a schedule of fees in chart form. 
Proposed Sec.  1.561(g) would add an introductory paragraph regarding 
the assessment of fees and would restate generally when the payment of 
fees is required. The proposed provision, for example, notes that VA 
would charge for special services used in responding to a FOIA request, 
that the fee schedule applies to requests under the Privacy Act as 
well, and that in cases in which the processing fee is less than 
$25.00, or in cases in which the requirements for a waiver have been 
met, the fee would be waived.
    Section 552(a)(4)(A)(i) requires agencies to promulgate regulations 
prescribing a schedule of fees applicable to processing FOIA requests. 
The fees must conform to OMB guidelines regarding a uniform schedule of 
fees for all agencies. Proposed Sec.  1.561(g)(1) would implement the 
OMB guidance and prescribe the criteria that VA would use to calculate 
search and review fees when such fees are based upon VA employees' 
salaries.
    Proposed Sec.  1.561(g)(2) would also provide a fee schedule in 
chart form that describes the type of activity for which the fee is 
being assessed and the composition of the fee being assessed.

[[Page 63128]]

    Proposed Sec.  1.561(h), in part, would replace current Sec.  
1.555(b)(2) and would add that the requester will be notified of the 
assessment of a fee over $25.00 or the amount set by OMB fee 
guidelines, whichever is higher. This provision would allow VA 
flexibility with regard to notifying requesters of fee assessments 
should the limit be changed in the future. It would also advise 
requesters of the potential for such a change. Proposed Sec.  1.561(h) 
would add that any agreement made by the requester to pay a fee on a 
later date shall be in writing. Based on our experience, we believe 
that this requirement would help to avoid any ambiguity with regard to 
fee issues. Proposed Sec.  1.561(h) would also expand the language in 
current Sec.  1.555(b)(2) and authorize the FOIA Officer's contact with 
the requester regarding clarification of fee issues. Proposed Sec.  
1.561(h) would provide that the timeline for responding to the request 
shall be tolled until the fee issue is resolved. This proposed 
provision would implement section 552(a)(6)(A)(ii)(II), which 
authorizes tolling of the time limit if necessary to clarify issues 
regarding fee assessment. Proposed Sec.  1.561(h) would also provide 
that if VA does not receive a response regarding a request for 
clarification of the fee issue within 10 days, it will close the file 
on the records request. We believe that setting a clear limit on the 
response time will avoid delay that results when a requester's 
intentions are unclear. Such a limit will also prevent VA from having 
to maintain cases on its docket that the requester has no interest in 
pursuing. Thus, it would be reasonable to place responsibility on the 
requester to follow through with the request that he or she initiated 
if the records sought are still desired.
    Section 552 authorizes recovery of direct costs of search, 
duplication, and review in certain cases. Proposed Sec.  1.561(i) would 
add a provision that when the agency chooses to provide a special 
service sought by the requester, such as certifying records, the direct 
cost of that service will be charged to the requester. This provision 
would allow the agency the flexibility to work with the requester to 
grant special services of this nature if possible, but allows the 
agency to recoup the costs of those services. This proposed provision 
would be promulgated pursuant to 31 U.S.C. 9701, which permits agencies 
to prescribe regulations establishing a charge for things of value 
provided by the agency.
    Proposed Sec.  1.561(j) would restate the provisions of current 
Sec.  1.555(g) in all pertinent respects with regard to charging 
interest on an unpaid bill. It also would replace current Sec.  
1.555(g)(5) regarding application of the Debt Collection Act of 1982 
(Pub. L. 97-365). It would delete the requirement that the 
determination to charge interest will be made by a VA Central Office 
official or field facility head or designee. Based on our experience, 
we believe that this requirement does not make the process more 
efficient. By deleting the current delegation of authority provision, 
we intend to provide flexibility for other individuals to make the 
determination to charge interest but only according to the criteria 
prescribed in VA's regulations. The proposed rule would also delete 
references to VA procedures that ensure that a requester who has 
remitted payment is credited with the payment. We believe this 
provision to be superfluous, as any payment would ordinarily be 
credited as a matter of administrative regularity.
    Proposed Sec.  1.561(k) would restate the provisions of current 
Sec.  1.555(g)(3) in all pertinent respects with regard to aggregating 
requests. Proposed Sec.  1.561(k) would use the term ``component'' 
rather than ``responsible Central Office official or field facility 
head or designee.'' Based on our experience, we believe that this 
requirement would allow more flexibility in determining whether a 
request should be aggregated according to the criteria in VA's 
regulations. It also would allow those most familiar with the FOIA 
process to make the determination, which we believe would add more 
administrative regularity to the process.
    Proposed Sec.  1.561(l)(1) would restate the introductory language 
set forth in current Sec.  1.555(g)(4). Proposed Sec.  1.561(l)(1) 
would add that payment for work already completed is not an advance 
payment. This language is an administrative provision intended to 
clarify what constitutes an advance payment.
    Proposed Sec.  1.561(l)(2) would restate the provisions of current 
Sec.  1.555(g)(4)(i) in all pertinent respects with regard to advance 
payments. It would delete current provisions providing an option for 
the VA to notify the requester of the likely fee and obtain 
satisfactory assurance of full payment. Based on our experience, 
deleting this language would avoid any ambiguity with regard to the fee 
and would clarify that the component may require payment in advance. We 
believe this would assist in the administration of this provision.
    Proposed Sec.  1.561(l)(3) would generally restate the provisions 
in current Sec.  1.555(g)(4)(ii). However, proposed Sec.  1.561(l)(3) 
would delete the option that a requester may demonstrate that a fee 
owed has been paid in order to allow VA to process the request. In our 
experience, the circumstances under which fee issues arise do not 
concern a requester who has already paid the fee. Typically, unresolved 
fee issues occur in the context of a fee that has not been paid. In 
order to address the typical situations in this regard, we propose the 
deletion of the language above as unnecessary.
    Proposed Sec.  1.561(l)(4) would add a provision that if a 
requester has a history of prompt payment, the FOIA Officer may accept 
assurance of full payment from the requester rather than require an 
advance payment.
    Proposed Sec.  1.561(l)(5) would restate current Sec.  
1.555(g)(4)(iii) with no substantive change.
    Proposed Sec.  1.561(m) would replace and restate current Sec.  
1.555(b)(4). Proposed Sec.  1.561(m) would make no substantive change 
to current Sec.  1.555(b)(4).
    Proposed Sec.  1.561(n)(1) would add language regarding the waiver 
or reduction of fees in general. It would direct the requester's 
attention to the requirements for fee waiver requests, and would 
require that the requester submit adequate justification for the fee 
waiver request and advise that without adequate justification, the 
waiver request will be denied. Proposed Sec.  1.561(n)(1) also would 
provide the opportunity for the FOIA Officer to request additional 
information from the requester regarding the fee waiver request and 
close the file on the records request if VA does not receive the 
requested information within 10 days. This provision would advise the 
requester that it is important to submit adequate justification for the 
fee waiver request, which would avoid delay and fee waiver denials 
based simply on lack of adequate data. It would also provide for 
consistency in the administrative decision-making process by 
establishing a firm deadline for the submission of additional support. 
These provisions essentially would create a more efficient fee waiver 
request process, which would benefit both VA in its administration of 
the FOIA and requesters seeking records. In addition, proposed Sec.  
1.561(n)(1) would prescribe that fee waiver requests are determined on 
a case-by-case basis. This provision would clarify that each request 
for a fee waiver will be analyzed in its own right. A requester's 
history of having received a fee waiver in the past would have no 
bearing on future requests. We believe that this provision will also 
provide for greater administrative consistency in addressing fee waiver 
requests.

[[Page 63129]]

    Proposed Sec.  1.561(n)(2) through (4) would replace and restate 
the provisions of current Sec.  1.555(f)(2). No substantive changes 
would be made in the provisions regarding the requirements to receive a 
fee waiver. Proposed Sec.  1.561(n)(2) through (4) would also add 
clarifying language to each criterion considered in a fee waiver 
determination. The proposed rule would expand the fee waiver 
information provided in VA's regulations and should be helpful to 
requesters seeking waivers.
    Proposed Sec.  1.561(n)(5) would add a provision that if some of 
the records being released in response to a request meet the criteria 
for a fee waiver, then the assessment of a fee would be waived with 
regard to that portion of the records. This provision is administrative 
in nature and would advise requesters that it is possible to be 
provided a partial fee waiver. We intend that this provision would 
provide requesters as much information as possible regarding the 
parameters of fee waivers.
    Proposed Sec.  1.561(n)(6) is an administrative provision that 
requires requesters to provide the information requested by VA and 
provides notice regarding the administrative factors that enter into a 
component's fee waiver determination. It underscores that the component 
has some degree of discretion to consider such factors with regard to 
fee waiver requests. We believe that this addition would provide 
requesters with a more comprehensive understanding of the fee waiver 
process.
    Proposed Sec.  1.561(n)(7) would replace and restate current Sec.  
1.555(f)(4) regarding appeals from adverse fee waiver determinations. 
Proposed Sec.  1.561(n)(7) makes no substantive change to the 
provision.
    Proposed Sec.  1.561(n)(8) would add a provision that when 
considering a fee waiver request, VA may require proof of identity. 
This provision would provide flexibility for components addressing fee 
waiver requests by allowing them to ensure that the proper party is 
providing the necessary information. This is an administrative 
provision and is intended to provide components with the flexibility to 
exercise options such as verification of identity in appropriate cases.

1.562 Other Rights and Services

    Proposed Sec.  1.562 would add a provision to advise requesters 
that nothing in this section shall be construed to entitle an 
individual to information to which the individual would not be entitled 
under the FOIA. This provision is an administrative addition, intended 
to underscore that these regulations govern release of information 
under the FOIA and should be construed in that context only.

Changes to 38 CFR Part 2

2.6 Secretary's Delegations of Authority to Certain Officials (38 
U.S.C. 512)

    Proposed Sec.  2.6(e)(10) would add the Assistant General Counsel 
that has jurisdiction over FOIA matters to the list of those 
individuals authorized to make final Departmental decisions on appeals 
under the FOIA, the Privacy Act, and 38 U.S.C. 5701, 5705, and 7332. 
This proposed amendment would allow for greater flexibility in 
addressing and processing appeals under the FOIA. At a time when 
requests and appeals filed under various confidentiality statutes are 
expanding, additional signature authority would enable VA to process 
more appeals and expedite the appeals process.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

The Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This proposed rule generally 
pertains to requests for information submitted by individuals. Further, 
it would be extremely rare, if ever, that a request for information by 
a small entity would have a significant impact on the business of the 
small entity. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
rule is exempt from the initial and final regulatory flexibility 
analyses requirements of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget, as any regulatory action that 
is likely to result in a rule that may: (1) Have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This proposed rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    There is no Catalog of Federal Domestic Assistance number for the 
program affected by this proposed rule.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on September 9, 2010, for publication.

List of Subjects

38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information, 
Government contracts, Government employees, Government property, 
Infants and children, Inventions and patents, Parking, Penalties, 
Privacy, Reporting and recordkeeping requirements, Seals and insignia, 
Security measures, Wages.

[[Page 63130]]

38 CFR Part 2

    Authority delegations (Government agencies).

    Dated: October 4, 2010.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
parts 1 and 2 as follows:

PART 1--GENERAL PROVISIONS

    1. The authority citation for part 1 continues to read as follows:

    Authority: 38 U.S.C. 501(a), and as noted in specific sections.

    2. In Part 1, revise the undesignated center heading immediately 
preceding Sec.  1.550 to read as follows:

Procedures for Disclosure of Records Under the Freedom of Information 
Act

    2a. In Part 1, following the newly revised undesignated center 
heading remove the Note and authority citation preceding Sec.  1.550.
    3. Revise Sec.  1.550 to read as follows:


Sec.  1.550  Purpose.

    (a) Sections 1.550 through 1.562 contain the rules followed by VA 
in processing requests for records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552. These regulations should be read together with 
the FOIA, which provides the underlying legal basis for the regulations 
and other information regarding requests for records in the custody of 
a Federal agency. Information routinely provided to the public (press 
releases, for example) may be provided without following these 
sections. In addition, as a matter of policy, VA may make discretionary 
releases of records or information exempt from disclosure under the 
FOIA when permitted to do so in accordance with current law and 
governmental policy.
    (b) Requests for records about an individual protected by the 
Privacy Act, 5 U.S.C. 552a, including one's own records and records 
that pertain to an individual and that may be sensitive, will be 
processed under the FOIA and the Privacy Act. In addition to the 
following FOIA regulations, see Sec. Sec.  1.575 through 1.584 for 
regulations applicable to Privacy Act records.
    (c) Requests for records relating to a claim administered by VA 
pursuant to 38 U.S.C. 5701 will be processed under the FOIA and 38 
U.S.C. 5701. In addition to the following FOIA regulations, see 
Sec. Sec.  1.500 through 1.527 for regulations implementing 38 U.S.C. 
5701.
    (d) Requests for records relating to healthcare quality assurance 
reviews pursuant to 38 U.S.C. 5705 will be processed under the FOIA and 
38 U.S.C. 5705. In addition to the following FOIA regulations, see 38 
CFR 17.500 through 17.511 for regulations implementing 38 U.S.C. 5705.
    (e) Requests for records relating to treatment for the conditions 
specified in 38 U.S.C. 7332, such as drug abuse, alcoholism or alcohol 
abuse, infections with the Human Immunodeficiency Virus (HIV), or 
sickle cell anemia, will be processed under the FOIA and 38 U.S.C. 
7332. In addition to the following FOIA regulations, see Sec. Sec.  
1.460 through 1.499 of this part for regulations implementing 38 U.S.C. 
7332.


    Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114; 
38 U.S.C. 501, 552, 552a, 5701, 5705, 7332.

    4. Add Sec.  1.551 to read as follows:


Sec.  1.551  Definitions.

    As used in Sec. Sec.  1.550 through 1.562, the following 
definitions apply:
    Agency means any executive department, military department, 
government corporation, government controlled corporation, or other 
establishment in the executive branch of the Federal government, or 
independent regulatory entity.
    Appeal means a requester's written disagreement with an adverse 
determination under the FOIA.
    Beneficiary means a veteran or other individual who has received 
benefits (including medical benefits) or has applied for benefits 
pursuant to title 38, United States Code.
    Benefits records means an individual's records, which pertain to 
programs under any of the benefits laws administered by the Secretary 
of Veterans Affairs.
    Business day means the time during which typical Federal government 
offices are open for normal business. It does not include Saturdays, 
Sundays, or Federal legal public holidays. The term ``day'' means 
business day unless otherwise specified.
    Business information means confidential or privileged commercial or 
financial information obtained by VA from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    Component means each distinct VA entity, including Administrations, 
staff offices, services, or facilities.
    Expedited processing means giving a FOIA request priority for 
processing ahead of other pending requests because VA has determined 
that the requester has shown an exceptional need or urgency for the 
records as provided in these regulations.
    Fees. For fees and fee-related definitions, see Sec.  1.561(b).
    FOIA Officer means the individual within a VA component whose 
responsibilities include addressing and granting or denying requests 
for records under the FOIA.
    Perfected request means a written FOIA request that meets the 
requirements set forth in Sec.  1.554 of this part and for which there 
are no remaining issues about the payment of applicable fees or any 
other matter that requires resolution prior to processing.
    Reading room means space made available, as needed, in VA 
components where records are available for review pursuant to 5 U.S.C. 
552(a)(2). Ordinarily, the VA component providing a public reading room 
space will be the component that maintains the record.
    Record means a document, a portion of a document, and information 
contained within a document, and can include information derived from a 
document or a database. Such documents may be maintained in paper, 
electronic, and other forms, but do not include objects, such as tissue 
slides, blood samples, or computer hardware.
    Request means a demand for records under the FOIA as described 
below. The term request includes any action emanating from the initial 
demand for records, including an appeal related to the initial demand.
    Requester means, generally, any individual, partnership, 
corporation, association, or foreign or state or local government, 
which has made a demand to see or receive a copy of an agency record.
    Sensitive medical or mental health records mean documents 
containing information that, with a reasonable degree of medical 
certainty, are likely to have a serious adverse effect on an 
individual's mental or physical health if revealed to him or her.
    Submitter means any person or entity (including corporations, 
state, local and tribal governments and foreign governments) from whom 
VA obtains trade secrets or confidential commercial or financial 
information either directly or indirectly.
    VA means the Department of Veterans Affairs.
    VA Central Office (VACO) means the headquarters of the Department 
of Veterans Affairs. The mailing address is 810 Vermont Avenue, NW., 
Washington, DC 20420.

[[Page 63131]]

    Written or in writing means communications such as letters, 
photocopies of letters, electronic mail, and facsimiles (faxes), and 
does not include any form of oral communication.
    5. Revise Sec. Sec.  1.552 and 1.553 to read as follows:


Sec.  1.552  General provisions.

    (a) Additional information. The following Internet link will 
provide access to VA's information that is electronically available 
under the FOIA: http://www.foia.va.gov/.
    (b) Public Liaisons. VA has made available to the requester FOIA 
Public Liaisons to assist in the resolution of disputes between the 
agency and the requester. Contact information for VA's FOIA Public 
Liaisons can be found on VA's FOIA homepage. See Sec.  1.552(a) for the 
pertinent Internet address.
    (c) FOIA Annual Report. Under 5 U.S.C. 552(e), VA is required to 
prepare an annual report regarding its FOIA activities. The report 
includes information about FOIA requests and appeals. Copies of VA's 
annual FOIA report may be obtained from the Department's Chief FOIA 
Officer or by visiting VA's FOIA Web site. See Sec.  1.552(a) for the 
pertinent Internet address.


Sec.  1.553  Public reading rooms.

    (a) VA maintains a public reading room electronically at its FOIA 
home page on the Internet, which contains the records that the FOIA 
requires to be regularly made available for public inspection and 
copying. See Sec.  1.552(a) for the pertinent Internet address. Each VA 
component is responsible for determining which of its records are 
required to be made available and for making its records available 
electronically. VA also makes available for public inspection and 
copying current subject-matter indices of its reading room records that 
are available electronically. Each index shall be updated regularly, at 
least quarterly, with respect to newly included records.
    (b) VA may delete some of the information in the records that it is 
making publicly available. Information in a public reading room record 
will be redacted, for example, if its release would be a clearly 
unwarranted invasion of an individual's personal privacy.
    (c) Some VA components may also maintain physical public reading 
rooms. Information regarding these components and their contact 
information is available on VA's FOIA home page on the Internet. See 
Sec.  1.552(a) for the pertinent Internet address. If you do not have 
access to the Internet and wish to obtain information regarding 
publicly available information or components that have a physical 
reading room, you may write the Department's Chief FOIA Officer at the 
following address: Department of Veterans Affairs, FOIA Service 
(005R1C), 810 Vermont Avenue, NW., Washington, DC 20420.


Sec.  1.553a  [Removed]

    6. Remove Sec.  1.553a.
    7. Revise Sec.  1.554 to read as follows:


Sec.  1.554  Requirements for making requests.

    (a) Requests by letter and facsimile (fax). The FOIA request must 
be in writing. VA accepts facsimiles (faxes) as written FOIA requests. 
If the request concerns documents protected by records to which another 
confidentiality statute applies, the request must contain an image of 
the requester's handwritten signature. To make a request for VA 
records, write directly to the FOIA Officer for the VA component that 
maintains the records. If requesting records from a particular medical 
facility or regional office, for example, the request should be sent to 
the FOIA Office at the address listed for that component. If seeking 
records from a component within VA's Central Office, the request should 
be sent to the Central Office address of the FOIA Office listed for 
that component. A list of FOIA contacts is available on the Internet. A 
legible return address must be included with your FOIA request; you may 
wish to include other contact information as well, such as a telephone 
number and an electronic mail (e-mail) address. If you are not sure 
where to send your request, you should seek assistance from the FOIA 
Contact for the office that you believe manages the programs whose 
records you are requesting or send the request to the Director, FOIA 
Service (005R1C), 810 Vermont Avenue, NW., Washington, DC 20420, who 
will refer it for action to the FOIA contact at the appropriate 
component. For the quickest possible handling, the request letter and 
the envelope of any FOIA request should be marked ``Freedom of 
Information Act Request.'' You may find it helpful to refer to VA's 
FOIA home page on the Internet when making your request; available 
reference material includes VA's FOIA Reference Guide and the text of 
the FOIA. See Sec.  1.552(a) for the pertinent Internet address.
    (b) Requests by e-mail. VA will accept an e-mail request. If the 
request concerns documents protected by records to which another 
confidentiality statute applies, the email transmission must contain an 
image of the requester's handwritten signature, such as an attachment 
that shows the individual's handwritten signature. In order to assure 
prompt processing, e-mail FOIA requests must be sent to official VA 
FOIA mailboxes established for the purpose of receiving FOIA requests. 
An e-mail FOIA request that is sent to an individual VA employee's 
mailbox, or to any other entity, will not be considered a perfected 
FOIA request. Mailbox addresses designated to receive e-mail FOIA 
requests are available on VA's FOIA home page. See Sec.  1.552(a) for 
the pertinent Internet address.
    (c) Making a request for another individual's records. If you are 
requesting records about another individual, it will be helpful under 
certain circumstances to provide proof that you are authorized to 
obtain the records, such as a legally sufficient prior written 
authorization for the release of information signed by that individual, 
proof that the individual is deceased (e.g., a copy of a death 
certificate), or proof that the requester is the authorized 
representative of the individual or the individual's estate. This 
information will assist in determining whether and to what degree the 
records may be released.
    (d) Description of records sought. (1) You must describe the 
records that you seek in enough detail to allow VA personnel to locate 
them with a reasonable amount of effort. To the extent possible, you 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter of the 
document. Generally, the more information you provide about the record 
you are seeking, the more likely VA personnel will be able to locate 
any responsive records. Wide-ranging requests that lack specificity, or 
contain descriptions of very general subject matters, with no 
description of specific records, may be considered ``not reasonably 
described'' and thus not subject to further processing.
    (2) Requests for voluminous amounts of records may be placed in a 
complex track of a multitrack processing system pursuant to Sec.  
1.556(b); such requests also may meet the criteria for ``unusual 
circumstances,'' which are processed in accordance with Sec.  1.556(c) 
and may require more than twenty (20) business days to process despite 
the agency's exercise of due diligence.
    (3) If the FOIA Officer determines that your request does not 
reasonably describe the records sought, the FOIA Officer will tell you 
why the request is insufficient. The FOIA Officer will also provide an 
opportunity to discuss your request by documented telephonic 
communication or written

[[Page 63132]]

correspondence in order to modify it to meet the requirements of this 
section and place your request into a more expedient track.
    (4) The time limit for VA to process your FOIA request will not 
start it determines that you have reasonably described the records that 
you seek in the FOIA request. If VA seeks additional clarification 
regarding your request and does not receive your written response 
within thirty (30) calendar days of the date of its communication with 
you, VA will conclude that you are no longer interested in pursuing 
your request and will close its files on your request.
    (e) Agreement to pay fees. The time limit for processing your 
request will be tolled while any fee issue is unresolved. If the FOIA 
Officer anticipates that the fees for processing your request will 
exceed the amount that you that you have stated that you are willing to 
pay or will amount to more than $25.00 or the amount set by OMB fee 
guidelines, whichever is higher, the FOIA Officer will notify you. In 
such cases, the FOIA Officer may require you to agree in writing to pay 
the estimated fee. In addition, if the estimated fee amount exceeds 
$250.00 or you previously have failed to pay a FOIA fee in a timely 
manner, the FOIA Officer may require you to pay the FOIA fee in 
advance, before beginning to process your FOIA request. If the FOIA 
Officer does not receive your written response within ten (10) business 
days of the date of the FOIA Officer's communication with you, she or 
he will conclude that you are no longer interested in pursuing your 
request and will close your request. If you request a fee waiver under 
Sec.  1.561, you nonetheless may state your willingness to pay a fee up 
to an identified amount in the event that the fee waiver is denied; 
this will allow the component to process your FOIA request while 
considering your fee waiver request. If you are required to pay a fee 
in advance, and you paid the fee, and if VA later determines that you 
overpaid or that you are entitled to a full or partial fee waiver, a 
refund will be made. (For more information on the collection of fees 
under the FOIA, see Sec.  1.561.)
    (f) You must meet all of the requirements of this section in order 
for your request to be perfected.


Sec.  1.554a  [Removed]

    8. Remove Sec.  1.554a.
    9. Revise Sec. Sec.  1.555 through 1.557 to read as follows:


Sec.  1.555  Responsibility for responding to requests.

    (a) General. Except as stated in paragraphs (c) and (d) of this 
section, the FOIA Officer of the component that first receives a 
request for records is responsible for either processing the request or 
referring it to the designated FOIA Officer for the appropriate 
component. Offices within the component that is responsible for 
processing the FOIA request shall provide the FOIA Officer all 
documents responsive to the request that are in their possession as of 
the date the search for responsive records begins.
    (b) Authority to grant or deny requests. Each component shall 
designate a FOIA Officer who is responsible for making determinations 
pursuant to the FOIA.
    (c) Consultations and referrals. When a component receives a 
request for a record, the FOIA Officer shall determine whether the 
request would be more properly addressed by another component of VA or 
by another entity within the Federal government. If the FOIA Officer of 
the component that receives the request determines that the component 
is best able to address the request, then the component shall do so. If 
the FOIA Officer determines that the component that receives the FOIA 
request is not best able to process the request, then she or he shall:
    (1) Process the request after consulting with the component or 
agency best able to determine whether to disclose the record and with 
any other component or agency that has a substantial interest in it; or
    (2) Refer the request for the record and the responsibility for 
responding to that request to the VA component or Federal agency best 
able to address the request. Ordinarily, VA will presume that the 
component or agency that created the record is best able to determine 
whether to disclose it.
    (d) Classified information. The FOIA Officer will refer requests 
for records containing classified information to the component or 
agency that classified the information for processing.
    (e) Notice of referral. Whenever a FOIA Officer refers all or part 
of a request and responsibility for processing the request to another 
component or agency, the FOIA Officer will notify the requester in 
writing of the referral and provide the requester the name and contact 
information of the entity to which the request has been referred, after 
consulting with the entity to which the request is to be referred to 
ensure that the request is being referred to the correct entity. If 
only part of the request was referred, the FOIA Officer will inform the 
requester and identify the referred part at the time of the referral or 
in the final response.


Sec.  1.556  Timing of responses to requests.

    (a) General. Components ordinarily shall respond to requests 
according to their order of receipt and within the time frames 
established under the FOIA.
    (b) Multitrack processing. (1) VA will use two processing tracks to 
distinguish between the complexity of a request for records: Simple and 
complex, based upon the amount of work and/or time needed to process 
the request, including consideration of the number of pages involved.
    (2) The FOIA Officer shall advise the requester of the track into 
which the request has been placed and of the criteria of the faster 
track. The FOIA Officer will provide requesters in the slower track the 
opportunity to limit the scope of their requests in order to qualify 
for processing in the faster track. The FOIA Officer may contact the 
requester either by telephone or in writing, whichever the FOIA Officer 
determines is most efficient and expeditious; telephonic communication 
will be documented.
    (c) Unusual circumstances. (1) FOIA Officers may encounter 
``unusual circumstances,'' where it is not possible to meet the 
statutory time limits for processing the request. In such cases, the 
FOIA Officer will extend the twenty (20)-business day time limit for 
ten (10) more business days and notify the requester in writing of the 
unusual circumstances and of the date by which it expects to complete 
processing of the request. Where the extension is for more than ten 
(10) business days, the FOIA Officer will provide the requester with an 
opportunity to either modify the request so that it may be processed 
within the time limits or to arrange an alternative time period with 
the FOIA Officer for processing the request or a modified request. 
Unusual circumstances consist of the following:
    (i) The need to search for and collect the requested records from 
field facilities or other components other than the office processing 
the request;
    (ii) The need to search for, collect and examine a voluminous 
amount of separate and distinct records that are the subject of a 
single request; or
    (iii) The need for consultation with two or more components or 
another agency having a substantial interest in the subject matter of a 
request.
    (2) Where the FOIA Officer reasonably believes that certain 
requests from the same requester, or a group of requesters acting in 
concert, actually constitute the same request that would otherwise

[[Page 63133]]

satisfy the unusual circumstances specified in this paragraph, and the 
requests involve clearly related matters, the FOIA Officer may 
aggregate those requests. Multiple requests involving unrelated matters 
will not be aggregated.
    (d) Expedited processing. (1) Requests will be processed out of the 
order in which they were received by the component responsible for 
processing the FOIA request and given expedited treatment when VA 
determines that there is a compelling need to process the FOIA request 
promptly and out of order. A compelling need exists when VA determines 
that:
    (i) The failure to obtain the requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual;
    (ii) There is an urgency to inform the public concerning actual or 
alleged Federal government activity, if the request is made by a person 
primarily engaged in disseminating information;
    (iii) In the discretion of the FOIA Officer, the regulations 
warrant such treatment; or
    (iv) Where there is widespread and exceptional interest in which 
possible questions exist about the government's integrity which affect 
public confidence.
    (2) A requester who is seeking expedited processing must submit a 
statement, certified to be true to the best of that person's knowledge 
and belief, providing a detailed basis for how there is a compelling 
need. VA may waive the requirement for certification of the statement 
of compelling need as a matter of administrative discretion.
    (3) Within ten (10) calendar days of its receipt of a request for 
expedited processing, the FOIA Officer shall determine whether to grant 
the request and will provide the requester written notice of the 
decision. If the FOIA Officer grants a request for expedited 
processing, the FOIA Officer shall give the request priority and 
process it as soon as practicable. If the FOIA Officer denies the 
request for expedited processing, the requester may appeal the denial, 
which appeal shall be addressed expeditiously.


Sec.  1.557  Responses to requests.

    (a) Acknowledgement of requests. When a request for records is 
received by a component designated to receive requests, the component's 
FOIA Officer will assign a request number for future reference and send 
the requester a written acknowledgement of receipt.
    (b) Processing of requests. Upon receipt of a perfected request by 
the appropriate component, the FOIA Officer will make a reasonable 
effort to search for records responsive to the request. The FOIA 
Officer ordinarily will include as responsive those records in its 
possession and control as of the date the search for responsive records 
began. This includes searching for records in electronic form or 
format, unless to do so would interfere significantly with the agency's 
automated information systems. If fees for processing the request are 
due under Sec.  1.561, the FOIA Officer shall inform the requester of 
the amount of the fee as provided in Sec.  1.554(e) and Sec.  1.561. 
Where a FOIA Officer grants the request in part, the FOIA shall mark, 
redact, or annotate the records to be released to show the amount of 
information deleted and the exemption under which the deletion is made 
unless doing so would harm an interest protected by an applicable 
exemption. The location of the information deleted also will be 
indicated on the record, if technically feasible. The FOIA Officer will 
also provide the records in the form or format requested by the 
individual, if readily reproducible in that form or format.
    (c) Time limits for processing requests. Ordinarily, a component 
will have twenty (20) business days from the date of VA's receipt of 
the request to make a determination whether to grant a request in its 
entirety, grant in part, or deny a request in its entirety. If the 
request must be referred to another component, it will be referred as 
quickly as possible, but no later than ten (10) business days after the 
referring office receives the FOIA request.
    (d) Adverse determinations of requests. Whenever a component makes 
an adverse determination denying a request in any respect, the 
component FOIA Officer shall promptly notify the requester of the 
adverse determination in writing. Adverse determinations include the 
following: A determination to withhold a requested record in whole or 
in part; a determination that the requested record does not exist or 
cannot be located; a determination that a record is not readily 
reproducible in the form or format sought by the requester; a 
determination that what has been sought is not a record subject to the 
FOIA; a determination on any disputed fee matter, including the denial 
of a fee waiver; and a denial of a request for expedited treatment. The 
adverse determination notice must be signed by the component head or 
the component's FOIA Officer, and will include the following:
    (1) The name and title or position of the person responsible for 
the adverse determination;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemptions applied by the FOIA Officer in denying the request;
    (3) The amount of information withheld in number of pages or other 
reasonable form of estimation; an estimate is not necessary if the 
volume is indicated on redacted pages disclosed in part or if providing 
an estimate would harm an interest provided by an applicable exemption; 
and
    (4) Notice that the requester may appeal the adverse determination 
and a description of the requirements for an appeal under Sec.  1.559 
of this part.
    10. Add Sec. Sec.  1.558 through 1.562 to read as follows:
* * * * *
Sec.
1.558 Business information.
1.559 Appeals.
1.560 Maintenance and preservation of records.
1.561 Fees.
1.562 Other rights and services.
* * * * *


Sec.  1.558  Business information.

    (a) General. Business information received by VA from a submitter 
will be considered under the FOIA pursuant to this section and in 
accordance with the requirements set forth in Sec.  1.557 of this part.
    (b) Designation of business information. A submitter of business 
information may designate that specific records or portions of records 
submitted are business information, at the time of submission or within 
a reasonable time thereafter. The submitter must use good faith efforts 
in designating records that the submitter claims could be expected to 
cause substantial competitive harm and thus warrant protection under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). The submitter may mark the 
record submission as confidential or use the words ``business 
information'' or describe the specific records that contain business 
information. Such designation will be considered, but will not control, 
the FOIA Officer's decision on disclosing the material. A designation 
will remain in effect for a period of not more than 10 years after 
receipt by VA, unless the submitter provides acceptable justification 
for a longer period. A submitter may designate a shorter period by 
including an expiration date.
    (c) Notices to submitters. (1) The FOIA Officer shall promptly 
notify a submitter in writing of a FOIA request seeking the submitter's 
business information whenever the FOIA Officer has reason to believe 
that the information may be protected under

[[Page 63134]]

FOIA Exemption 4, 5 U.S.C. 552(b)(4), regarding business information. 
The written notice will provide the submitter an opportunity to object 
to disclosure of any specified portion of the records within the time 
period specified in the notice. The notice will either describe in 
detail the business information requested (e.g., an entire contract 
identified by a unique number) or shall provide copies of the requested 
record(s) or record portions containing the business information. When 
notification of a voluminous number of submitters is required, the FOIA 
Officer may notify the submitters by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (2) If the FOIA Officer determines to release business information 
over the objection(s) of a submitter, the FOIA Officer will notify the 
submitter pursuant to paragraph (e) of this section.
    (3) Whenever the FOIA Officer notifies a requester of a final 
decision, the FOIA Officer will also notify the submitter by separate 
correspondence. This notification may be contained in VA's FOIA 
decision.
    (4) Exceptions to this notice provision are contained in paragraph 
(f) of this section.
    (d) Opportunity to object to disclosure. When notification to a 
submitter is made pursuant to paragraph (c)(1) of this section, the 
submitter may object to the disclosure of any specified portion(s) of 
the record(s). The submitter's objection(s) must be in writing, 
addressed to the FOIA Officer, and must be received by the reasonable 
date specified in the FOIA Officer's notice in order for VA to consider 
such objections. If the submitter has any objection to disclosure of 
the record(s) requested, or any specified portion(s) thereof, the 
submitter must identify the specific record(s) or portion(s) of records 
for which objection(s) are made. The objection will specify in detail 
all grounds for withholding any record(s) or portion(s) of the 
record(s) upon which disclosure is opposed under any exemption of the 
FOIA. In particular, if the submitter is asserting that the record is 
protected under Exemption 4, 5 U.S.C. 552(b)(4), it must show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential. The submitter must explain in 
detail how and why disclosure of the specified records would likely 
cause substantial competitive harm in the case of a required submission 
or state whether the records would customarily be disclosed by the 
submitter upon a request from the public in the case of a voluntary 
submission. The submitter's objections must be contained within a 
single written response; oral responses or subsequent, multiple 
responses generally will not be considered. If a submitter does not 
respond to the notice described in paragraph (c)(1) of this section 
within the specified time limit, the submitter will be considered to 
have no objection to disclosure of the information.
    (e) Consideration of objection(s) and notice of intent to disclose. 
The FOIA Officer will consider all pertinent factors, including but not 
limited to a submitter's timely objection(s) to disclosure and the 
specific grounds provided by the submitter for non-disclosure in 
deciding whether to disclose business information. Information provided 
by the submitter after the specified time limit and after the component 
has made its disclosure decision generally will not be considered. In 
addition to meeting the requirements of Sec.  1.557, when a FOIA 
Officer decides to disclose business information over the objection of 
a submitter, the FOIA Officer will provide the submitter with written 
notice, which includes:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date of not less than ten (10) days from 
the date of the notice (to allow the submitter time to take necessary 
legal action).
    (f) Exceptions to notice requirements. The notice requirements set 
forth in paragraphs (c) and (g) of this section will not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public; or
    (3) Disclosure of the information is required by statute, other 
than the FOIA, or by a regulation issued in accordance with the 
requirements of Executive Order 12600 or any other Executive Order.
    (g) Notice to requesters. When VA receives a request for records 
that may contain confidential commercial information protected by FOIA 
Exemption 4,5 U.S.C. 552(b)(4), regarding business information, the 
requester will be notified that the request is being processed under 
the provisions of this regulation and, as a consequence, there may be a 
delay in receiving a response. The notice to the requester will not 
include any of the specific information contained in the records being 
requested.
    Sec.  1.559 Appeals.
    (a) Informal resolution prior to appeal. Before filing an appeal, 
you may wish to communicate with the contact person listed in the FOIA 
response or the component's FOIA Officer to see if the issue can be 
resolved informally. Informal resolution of your concerns may be 
appropriate, for example, where the agency has not responded to your 
request or where you believe the search conducted was not adequate; in 
this example, additional information may assist in resolving the 
matter.
    (b) How to file and address a written appeal. You may appeal an 
adverse determination denying your request, in any respect, to the VA 
Office of the General Counsel (024), 810 Vermont Avenue, NW., 
Washington, DC, 20420. Any appeals concerning any Office of Inspector 
General records should be referred to the VA Office of Inspector 
General, Office of Counselor (50), 810 Vermont Avenue, NW., Washington, 
DC 20420. The FOIA appeal must be in writing. VA accepts facsimiles 
(faxes) as written FOIA appeals. If the appeal concerns documents 
protected by records to which another confidentiality statute applies, 
the appeal must contain an image of the requester's handwritten 
signature, such as an attachment that shows the individual's 
handwritten signature. Information regarding where to fax your FOIA 
appeal is available on VA's FOIA home page on the Internet. See Sec.  
1.552(a) for the pertinent Internet address. A legible return address 
must be included with your FOIA appeal; you may include other contact 
information as well, such as a telephone number and an electronic mail 
(e-mail) address.
    (c) How to file an e-mail appeal. VA will accept a FOIA appeal by 
e-mail. If the request concerns documents protected by records to which 
another confidentiality statute applies, the email transmission must 
contain an image of the requester's handwritten signature, such as an 
attachment that shows the individual's handwritten signature. In order 
to assure prompt processing, e-mail FOIA appeals must be sent to 
official VA FOIA mailboxes established for the purpose of receiving 
FOIA appeals; an e-mail FOIA appeal that is sent to an individual VA 
employee's mailbox, or to any other entity, will not be considered a 
perfected FOIA appeal. Mailbox addresses designated to receive e-mail 
FOIA appeals are available on VA's FOIA home page. See Sec.  1.552(a) 
for the pertinent Internet address.
    (d) Time limits and content of appeal. Your appeal to the VA OGC 
(024), or VA Office of Inspector General (50), as appropriate, must be 
postmarked no later than sixty (60) calendar days of the

[[Page 63135]]

date of the adverse determination. Your appeal must clearly identify 
the determination that you are appealing, including any assigned 
request number. Other information should also be included, such as the 
name of the FOIA officer, the address of the component, the date of 
component's determination, if any, and the precise subject matter of 
your appeal. If you are appealing only a portion of the component's 
determination, you must specify which part of the determination you are 
appealing. You should include copies of your request and VA's response, 
if any. An appeal is not perfected until VA either receives the 
information identified above or the appeal is otherwise sufficiently 
defined. Appeals should be marked ``Freedom of Information Act 
Appeal.'' The General Counsel, Deputy General Counsel, or Assistant 
General Counsel with jurisdiction over information disclosure matters 
(024) will act on behalf of the Secretary on all appeals under this 
section, except those pertaining to the Office of Inspector General. 
The designated official in the Office of Inspector General will act on 
all appeals pertaining to Office of Inspector General records. A 
determination by the General Counsel, Deputy General Counsel, or 
Assistant General Counsel, or designated official within the Office of 
Inspector General, will be the final VA action.
    (e) Responses to appeals. The Office of the General Counsel or the 
Office of Inspector General, as appropriate, will provide you a 
decision on your appeal in writing that includes a brief statement of 
the reasons for its determination, including, if applicable, any FOIA 
exemptions applied.
    (f) Court review. You must first appeal the adverse determination 
in accordance with this section before seeking review by a court.


Sec.  1.560  Maintenance and preservation of records.

    (a) Each component will preserve all correspondence pertaining to 
FOIA requests as well as copies of pertinent records, until disposition 
is authorized under title 44, U.S.C., or the National Archives and 
Records Administration's General Records Schedule 14.
    (b) The FOIA Officer must maintain copies of records that are the 
subject of a pending request, appeal, or lawsuit under the FOIA. A copy 
of all records shall be provided promptly to the Office of the General 
Counsel upon request.


Sec.  1.561  Fees.

    (a) General. Components will charge for processing requests under 
the FOIA in accordance with paragraph (c) of this section, except where 
fees are limited under paragraph (e) of this section or where a waiver 
or reduction of fees is granted under paragraph (n) of this section. 
The FOIA Officer will collect all applicable fees before releasing 
copies of requested records to a requester. Requesters must pay fees by 
check or money order made payable to the Treasury of the United States. 
Note that fees associated with requests from VA beneficiaries, 
applicants for VA benefits, or other individuals, for records 
retrievable by their names or individual identifiers processed under 38 
U.S.C. 5701 (records associated with claims for benefits) and 5 U.S.C. 
552a (the Privacy Act), will be assessed fees in accordance with the 
applicable regulatory fee provisions relating to VA benefits and VA 
Privacy Act records.
    (b) Definitions. For purposes of assessing or determining fees, the 
following definitions apply:
    (1) All other requests means a request that does not fit into any 
of the categories in this section.
    (2) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers his or her 
commercial, trade, or profit interests, to include furthering those 
interests through litigation. To the extent possible, the FOIA Officer 
shall determine the use to which a requester will put the requested 
records. When the intended use of the records is unclear from the 
request or when there is reasonable cause to doubt the use to which the 
requester will put the records sought, the FOIA Officer will provide 
the requester a reasonable opportunity to submit further clarification.
    (3) Direct costs mean expenses that VA incurs in responding to a 
FOIA request, including searching for and duplicating (and in the case 
of commercial use requesters, reviewing) records to respond to a FOIA 
request. Direct costs include, for example, the salary of the employee 
performing the work (the basic rate of pay for the employee, plus 16 
percent of that rate to cover benefits costs) and the cost of operating 
duplication machinery. Direct costs do not include overhead expenses, 
such as the costs of space or heating and lighting of the facility 
where the records are kept.
    (4) Duplication means making a copy of a record necessary to 
respond to a FOIA request; copies may take the form of paper, 
microform, audiovisual materials or machine readable-documentation 
(e.g., magnetic tape or disk), among others. The copy provided must be 
in a form that is reasonably usable by requesters.
    (5) Educational institution means a pre-school, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, an institution of professional education, or 
an institution of vocational education, which operates a program or 
programs of scholarly research. To be in this category, the FOIA 
Officer must make a determination that the request is authorized by and 
made under the auspices of a qualifying institution and that the 
records are sought to further a scholarly research goal of the 
institution and not the individual goal of the requester or a 
commercial goal of the institution.
    (6) Non-commercial scientific institution means an institution that 
is not operated on a ``commercial'' basis (as that term is defined in 
paragraph (b)(2) of this section) and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are sought to further scientific research and are not sought 
for a commercial use.
    (7) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term news 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only if such entities qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription or free distribution to the general public. 
These examples are not all-inclusive. As methods of news delivery 
evolve (for example, the adoption of the electronic dissemination of 
newspapers through telecommunications services), such alternative media 
that otherwise meet the criteria for news media shall be considered to 
be news-media entities. Freelance journalists may be regarded as 
working for a news-media entity if they can demonstrate a solid basis 
for expecting publication through that entity, even though not actually 
employed by it. A publication contract would be the clearest proof, but 
the requester's publication history may also

[[Page 63136]]

be considered. To be in this category, a requester must not be seeking 
the requested records for a commercial use; a records request 
supporting the requester's news-dissemination function shall not be 
considered to be for a commercial use.
    (8) Review means examining a record including audiovisual, 
electronic mail, data bases, documents and the like in response to a 
commercial use request to determine whether any portion of it is exempt 
from disclosure. Review includes the deletion of exempt material or 
other processing necessary to prepare the record(s) for disclosure. 
Review time includes time spent contacting any submitter and 
considering or responding to any objections to disclosure made by a 
submitter under Sec.  1.558(d) but does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions. Review costs are recoverable even if, after review, a 
record is not disclosed.
    (9) Search means the process of looking for and retrieving records 
that are responsive to a request, including line-by-line or page-by-
page identification of responsive information within records. Search 
also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. The component 
will conduct searches in the most efficient and least expensive manner 
reasonably possible. For example, line-by-line searches will not be 
conducted when duplicating an entire document is a less expensive and 
quicker method of complying with a request.
    (c) Categories of requesters and fees to be charged each category.
    There are four categories of FOIA requesters: Commercial use 
requesters, educational and non-commercial scientific institutional 
requesters, representatives of the news media, and all other 
requesters. Unless a waiver or reduction of fees is granted under 
paragraph (n) of this section or is limited in accordance with 
paragraph (e) of this section, specific levels of fees will be charged 
for each category as follows:
    (1) Commercial use requesters. Subject to the limitations in 
paragraph (e) of this section, commercial use requesters will be 
charged the full direct costs of the search, review, and duplication of 
records sought. Commercial use requesters are not entitled to 2 hours 
of free search time or the first 100 pages of reproduced documents free 
of charge. The FOIA Officer may charge a commercial use requester for 
time spent searching even if they do not locate any responsive 
record(s) or if they withhold the record(s) located as entirely exempt 
from disclosure.
    (2) Educational and non-commercial scientific institution 
requesters. Subject to the limitations in paragraph (e) of this 
section, educational and non-commercial scientific institution 
requesters will be charged for the cost of reproduction only, excluding 
charges for the first 100 pages.
    (3) Representative of the news media. Subject to the limitations in 
paragraph (e) of this section, representatives of the news media will 
be charged for the cost of reproduction only, excluding charges for the 
first 100 pages.
    (4) All other requesters. Subject to the limitations in paragraph 
(e) of this section, a requester who does not fit into any of the 
categories in this section will be charged fees to recover the full, 
reasonable direct cost of searching for and reproducing records 
responsive to a request, except that the first 2 hours of search time 
and the first 100 pages of reproduction will be furnished without cost. 
The FOIA Officer may charge all other requesters for time spent 
searching even if the component does not locate any responsive 
record(s) or if they withhold the record(s) located as entirely exempt 
from disclosure.
    (d) Fees to be charged. The following fees will be used when 
calculating the fee owed pursuant to a request or appeal. The fees also 
apply to making documents available for public inspection and copying 
under Sec.  1.553 of this part.
    (1) Search. (i) Search fees. When a FOIA Officer determines that a 
search fee applies, the fee will be based on the hourly salary of VA 
personnel performing the search, plus 16 percent of the salary. The 
type and number of personnel involved in addressing the request or 
appeal depends on the nature and complexity of the request and 
responsive records. Fees are charged in quarter hour increments.
    (ii) Computer search. In cases where a computer search is required, 
the requester will be charged the direct costs of conducting the 
search, although certain requesters (as provided in paragraph (e)(1) of 
this section) will be charged no search fee and certain other 
requesters (as provided in paragraph (e)(4) of this section) will be 
entitled to the cost of 2 hours of employee search time without charge. 
When a computer search is required, VA will combine the hourly cost of 
operating the computer with the employee's salary, plus 16 percent of 
the salary. When the cost of the search (including the employee time, 
to include the cost of developing a search methodology, and the cost of 
the computer to process a request) equals the dollar amount of 2 hours 
of the salary of the employee performing the search, VA will begin to 
assess charges for a computer search.
    (2) Duplication. When a duplication fee applies, the FOIA Officer 
will charge a fee of 15 cents per one-sided page for a paper photocopy 
of a record; no more than one copy will be provided. For copies 
produced by computer, such as tapes and discs, the FOIA Officer will 
charge the direct costs of producing the copy, including employee time. 
For other forms of duplication, the FOIA Officer will charge the direct 
costs of that duplication.
    (3) Review. When review fees apply, review fees will be charged at 
the initial level of review only, when the component responsible for 
processing the request determines whether an exemption applies to a 
record or portion of a record. For review at the appeal level, no fee 
will be charged for an exemption that has already been applied and is 
determined to still apply. However, record or record portions withheld 
under an exemption that is subsequently determined not to apply may be 
reviewed again to determine whether any other exemption not previously 
considered applies; the costs of that review are chargeable. Review 
fees will be charged at the same rates as those charged for search 
under paragraph (d)(1) of this section.
    (e) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, non-commercial scientific 
institutions, or representatives of the news media.
    (2) No search or review fee will be charged for a quarter hour 
period unless more than half of that period is required for search or 
review.
    (3) No search fee (or duplication fee, when records are not sought 
for commercial use and the request is made by an educational or 
noncommercial scientific institution whose purpose is scholarly or 
scientific research, or a representative of the news media) will be 
charged in accordance with this section if the agency fails to comply 
with the time limit under Sec.  1.556(a), and if no unusual or 
exceptional circumstances apply to the processing of the request 
pursuant to Sec.  1.556(c). Duplication and search fees may still be 
charged to commercial use requesters. Duplication fees may still be 
charged for ``all other'' requesters.
    (4) Except for requesters seeking records for a commercial use, the 
following will be provided without charge:

[[Page 63137]]

    (i) The first 100 pages of duplication (or the cost equivalent).
    (ii) The first 2 hours of search time (or the cost equivalent).
    (5) Whenever a total fee calculated under paragraph (d) of this 
section is less than $25.00, no fee will be charged.
    (6) VA may provide free copies of records or free services in 
response to an official request from other government agencies and 
Congressional offices and when a component head or designee determines 
that doing so will assist in providing medical care to a VA patient or 
will otherwise assist in the performance of VA's mission.
    (f) The following table summarizes the chargeable fees for each 
category of requester.

----------------------------------------------------------------------------------------------------------------
               Category                      Search fees              Review fees            Duplication fees
----------------------------------------------------------------------------------------------------------------
(1) Commercial Use...................  Yes....................  Yes....................  Yes.
(2) Educational Institution..........  No.....................  No.....................  Yes (100 pages free).
(3) Non-Commercial Scientific          No.....................  No.....................  Yes (100 pages free).
 Institution.
(4) News Media.......................  No.....................  No.....................  Yes (100 pages free).
(5) All other........................  Yes (2 hours free).....  No.....................  Yes (100 pages free).
----------------------------------------------------------------------------------------------------------------

     (g) Fee schedule. If it is determined that a fee will be charged 
for processing your FOIA request, VA will charge you to search for, 
review, and duplicate the requested records according to your fee 
category (see Sec.  1.561(c)) and the following fee schedule. In 
addition, VA will charge you for any special handling or services 
performed in connection with processing your request and/or appeal. The 
following fees will be used by VA; these fees apply to services 
performed in making documents available for public inspection and 
copying under Sec.  1.553 as well. The duplicating fees also are 
applicable to records provided in response to requests made under the 
Privacy Act. Fees will not be charged under either the FOIA or the 
Privacy Act where the total amount of fees for processing the request 
is $25.00 or less or where the requester has met the requirements for a 
statutory fee waiver.
    (1) Search and review (review applies to commercial-use requesters 
only). Fees are based on the average hourly salary (base salary plus DC 
locality payment), plus 16 percent for benefits, of employees in the 
following three categories. Fees will be increased annually consistent 
with Congressionally approved pay increases. Fees are charged in 
quarter-hour increments.
    (i) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and 
below).
    (ii) Professional--Based on GS-11, Step 7, pay (all employees at 
GS-8 through GS-12).
    (iii) Managerial--Based on GS-14, Step 2, pay (all employees at GS-
13 and above).

    Note:  Fees for the current fiscal year are posted on VA's FOIA 
home page (see Sec.  1.552(a) for the pertinent Internet address).

    (2) Schedule of fees:

------------------------------------------------------------------------
                 Activity                               Fees
------------------------------------------------------------------------
(i) Duplication of standard size (8\1/2\''  $0.15 per page
 x 11''; 8\1/2\'' x 14''; 11'' x 14'')
 paper records.
(ii) Duplication of non-paper items (e.g.,  Direct cost to VA.
 x-rays), paper records which are not of a
 standard size (e.g., architectural
 drawings/construction plans or EKG
 tracings), or other items which do not
 fall under category (1), in paragraph
 (c)(1) of this section.
(iii) Record search by manual (non-         Basic hourly salary rate of
 automated) methods.                         the employee(s), plus 16
                                             percent
                                            * Note--If a component uses
                                             a single class of personnel
                                             for a search, e.g., all
                                             clerical or professional,
                                             an average rate for the
                                             grades of employees
                                             involved in the search may
                                             be used.
(iv) Record search using automated          Direct cost to perform
 methods, such as by computer.               search.
(v) Record review (for Commercial Use       Basic hourly rate of
 Requesters only).                           employees performing review
                                             to determine whether to
                                             release records and to
                                             prepare them for release,
                                             plus 16 percent.
(vi) Other activities, such as: Attesting   Direct cost to VA.
 under seal or certifying that records are
 true copies; sending records by special
 methods; forwarding mail; compiling and
 providing special reports, drawings,
 specifications, statistics, lists,
 abstracts or other extracted information;
 generating computer output; providing
 files under court process where the
 federal government is not a party to, and
 does not have an interest in, the
 litigation.
------------------------------------------------------------------------

    (h) Notification of fee estimate or other fee issues. (1) Threshold 
for charging fees: Except for situations covered by Sec.  1.556(k), VA 
will not charge you if the fee is $25.00 or less.
    (2) When a FOIA Officer determines or estimates that the fees to be 
charged under this section will amount to more than $25.00 or the 
amount set by OMB fee guidelines, whichever is higher, the FOIA Officer 
will notify you in writing of the actual or estimated amount of the 
fees, and ask you to provide written assurance of the payment of all 
fees or fees up to a designated amount, unless you have indicated a 
willingness to pay fees as high as those anticipated. Any such 
agreement to pay the fees shall be memorialized in writing. In 
addition, when a requester does not provide sufficient information upon 
which VA can identify a fee category (see paragraphs (c)(1) through (4) 
of this section), or an issue otherwise arises regarding fee 
assessment, the FOIA Officer may seek clarification from the requester. 
In either case, the timeline for responding to the request will be 
tolled and no further work will be done on it until the fee issue has 
been resolved. If VA does not receive a written response from you 
within ten (10) days after contacting you regarding a fee issue, it 
will assume that you no longer wish to pursue the request and will 
close the file on your request.
    (i) Charges for other services. Apart from the other provisions of 
this section, when special service, such as certifying

[[Page 63138]]

that records are true copies or sending them by other than ordinary 
mail, is requested, and the FOIA Officer chooses to provide such a 
service as a matter of administrative discretion, the direct costs of 
providing the service ordinarily will be charged.
    (j) Charging interest. The FOIA Officer may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue until payment is received by the component. 
Components will follow the provisions of the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (k) Aggregating requests. Whenever a FOIA Officer reasonably 
believes that a requester or group of requesters acting together is 
attempting to divide a request into a series of requests for the 
purpose of avoiding fees, the FOIA Officer may aggregate those requests 
and charge accordingly. FOIA Officers may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. Where requests are separated by a longer period, 
the FOIA Officer will aggregate them only where there exists a solid 
basis for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (l) Advance payments. (1) For requests other than those described 
in paragraphs (l)(2) and (l)(3) of this section, a FOIA Officer shall 
not require the requester to make an advance payment--in other words, a 
payment made before work is begun or continued on a request. Payment 
owed for work already completed (i.e., a prepayment before copies are 
sent to a requester) is not an advance payment.
    (2) Where a FOIA Officer determines or estimates that a total fee 
to be charged under this section will be more than $250.00, it may 
require the requester to make an advance payment of an amount up to the 
amount of the entire anticipated fee before beginning to process the 
request.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component within thirty (30) days of the date 
of billing, a FOIA Officer may require the requester to pay the full 
amount due, plus any applicable interest as specified in this section, 
and to make an advance payment of the full amount of any anticipated 
fee, before the FOIA Officer begins to process a new request or 
continues to process a pending request from that requester.
    (4) When a requester has a history of prompt payment, the FOIA 
Officer may accept a satisfactory assurance of full payment from a 
requester rather than an advance payment.
    (5) In cases in which a FOIA Officer requires advance payment or 
payment is due under this section, the timeline for responding to the 
request will be tolled and further work will not be done on it until 
the required payment is received.
    (m) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. Where records responsive to requests 
are maintained for distribution by agencies operating such statutorily-
based fee schedule programs, the FOIA Officer will inform requesters of 
the steps for obtaining records from those sources so that they may do 
so most economically.
    (n) Requirements for waiver or reduction of fees. (1) Waiving or 
reducing fees. Fees for processing your request may be waived if the 
requester meets the criteria listed in this section. The requester must 
submit adequate justification for a fee waiver; without adequate 
justification, the request will be denied. The FOIA Officer may, at the 
FOIA Officer's discretion, communicate with you to request additional 
information if necessary regarding your fee waiver request. If such 
additional information is not received within ten (10) business days, 
VA will assume that the requester does not agree to pay the required 
fees and the file will be closed pending receipt of your notice that 
you will pay the required fee. Requests for fee waivers are decided on 
a case-by-case basis; receipt of a fee waiver in the past does not 
establish entitlement to a fee waiver each time a request is submitted.
    (2) Records responsive to a request will be furnished without 
charge or at a charge reduced below that established under paragraph 
(d) of this section where a FOIA Officer determines, based on all 
available evidence, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (3) To determine whether the first fee waiver requirement is met, 
the FOIA Officer will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed 
that a representative of the news media will satisfy this 
consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. The FOIA Officer 
will not make value judgments about whether information that would 
contribute significantly to public understanding of the operations or 
activities of the government is important enough to be made public.
    (4) To determine whether the second fee waiver requirement is met, 
the FOIA Officer will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the

[[Page 63139]]

requester has a commercial interest that would be furthered by the 
requested disclosure. The FOIA Officer shall consider any commercial 
interest of the requester (with reference to the definition of 
``commercial use'' in paragraph (b)(2) of this section), or of any 
person on whose behalf the requester may be acting, that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity in the administrative process to provide explanatory 
information regarding this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. The FOIA Officer 
ordinarily shall presume that where a news media requester has 
satisfied the public interest standard, the public interest will be the 
interest primarily served by disclosure to that requester. Disclosure 
to data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (5) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a fee waiver will be granted only 
for those records which so qualify.
    (6) Requests for the waiver or reduction of fees should address the 
factors listed in paragraph (n)(3) and (4) of this section, insofar as 
they apply to each request. FOIA Officers will exercise their 
discretion to consider the cost-effectiveness of their investment of 
administrative resources in this decision-making process, however, in 
deciding to grant waivers or reductions of fees.
    (7) An appeal from an adverse fee determination will be processed 
in accordance with Sec.  1.559.
    (8) When considering a request for fee waiver, VA may require proof 
of identity.


Sec.  1.562   Other rights and services.

    Nothing in this part shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

(Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114; 38 
U.S.C. 501)

PART 2--DELEGATIONS OF AUTHORITY

    11. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 
1729A, 5711; 44 U.S.C. 3702, and as noted in specific sections 
noted.)

    12. Revise paragraph (e)(10) of Sec.  2.6 to read as follows:


Sec.  2.6  Secretary's delegations of authority to certain officials 
(38 U.S.C. 512).

* * * * *
    (e) * * *
    (10) The General Counsel, Deputy General Counsel, and the Assistant 
General Counsel for Professional Staff Group IV are authorized to make 
final Departmental decisions on appeals under the Freedom of 
Information Act, the Privacy Act, and 38 U.S.C. 5701, 5705 and 7332.


    Authority: 38 U.S.C. 512
* * * * *
[FR Doc. 2010-25362 Filed 10-13-10; 8:45 am]
BILLING CODE 8320-01-P